“The Centre’s argument that same sex marriage is elite has no bearing on how the court will decide the case,” said Chief Justice of India (CJI).
Solicitor General Tushar Mehta representing the government argued that there will be “several ramifications” if the laws are amended to include same sex couples. In his submission before the court he said that the right to marry “does not mean the right to compel the state to create a new definition of marriage.” He said that this subject is better left to the choice of the parliament.
Mehta also said that the terminology of the queer community is not well defined and may arise as a problem while coming up with new legislation. He said that the court is dealing with an “unidentified class” as the ‘plus’ in LGBTQIA+ is undefined.
The same sex marriage hearing entered its fifth day. The hearing began with Advocate Karuna Nundy and Advocate Arundhati Katju delivering their closing arguments representing the petitioners.
Adv. Nundy in her submissions sought for the recognition of rights of queer, non-heterosexual and same sex couples under secular legislations like the Special Marriage Act and the Foreign Marriage Act. She also sought the recognition of marriage of Overseas Indian Citizens under the Citizenship Act.
She also disagreed with the arguments made by the counsel representing the government that 99.9 percent of people in India belong to the gender binary. She said that the 2011 census shows that India is home to 4.8 million transgender people.
The counsel for the petitioners, Advocate Karuna Nundy and Advocate Arundhati Katju also urged the usage of gender neutral words like ‘spouse’ or ‘third gender spouse’ and ‘non binary spouse’ in marriage related legislations.
Adv. Arundhati Katju in her submission said that parents of same sex couples also long for their marriage just like the parents of an opposite sex couple. She also said that the concept of same sex marriage is not elite and she has been hearing from couples in Raipur and Chhattisgarh. Previously during the hearing CJI D Y Chandrachud observed that the elitism argument of the Centre was “just prejudice and has no bearing on how the Court will decide the case,” as quoted by the Indian Express.
Adv. Katju in her argument also said that, “Application of laws must be uniform for same sex and opposite sex couples.” Advocate Chakravorty, representing the petitioners argued that the exclusion of same sex and trans couples from adoption under the Juvenile Justice Act defeats the very purpose of adoption –to provide a stable and loving family for a child.
According to a Pew Research survey conducted in India in 2020, 37 percent of people said that same sex marriage should be accepted, from 15 percent in 2014, the first time the question was asked in the country.
