Supreme Court urged to utilise its authority to assure recognition of same-sex marriages

The petitioners seeking legal validation for same-sex marriage on Wednesday urged the Supreme Court to use its plenary power "prestige and moral authority” to push the society to acknowledge such a union as would ensure LGBTQIA persons lead a “dignified” life like heterosexuals as they have no representation in Parliament.

Senior advocate Mukul Rohatgi, appearing for one of the petitioners, urged before a five-judge constitution bench headed by Chief Justice D Y Chandrachud “the State should come forward and provide recognition to same-sex marriage.” Rohatgi referred to judgements, including the one that decriminalised consensual gay sex, to say the court was revisiting something which has already been decided.

If the consensual sexual relationship in private is accepted legally then the next natural consequence is the validation of the marriage so that homosexuals are not treated as “lesser mortals” in public space, he said.

“Our parents have accepted us despite belonging to older generations. They want their children to settle in their lives. The State wants them to be ostracised. They want their parents to be ostracised. All these discriminations are needed to be wiped out,” Rohatgi said.

He said LGBTQIA ((lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) have no representation in Parliament and that is why it is the courts where they have to come.

Rohatgi said courts have always struck down the majoritarian view that if a minuscule population is affected by any action there was no need for any course correction. It has been held that if one person’s fundamental right is affected, that impugned action has to be struck down, he said.

The veteran lawyer referred to the law on widow re-marriage and said the society did accept it then, the “law acted with alacrity” and social acceptance followed.

“Here, this court needs to push the society to acknowledge the same-sex marriage. This court, besides the power under Article 142 (which provides SC the plenary power to pass any order necessary for doing complete justice) of the Constitution, has moral authority and it enjoys public confidence. We rely on the prestige and moral authority of this court to ensure that we get our right,” Rohagti told the bench which also comprised Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

He said, “The State should come forward and provide recognition to same-sex marriage... which will help us lead a dignified life like heterosexuals.” “I am equal to heterosexual groups and it cannot be so that their sexual orientation is correct and all others are incorrect. I am saying let there be a positive affirmation...We should not be treated as lesser mortals and there will be full enjoyment of the right to life,” he said.

The bench said as it was not going into the personal laws several rounds of litigations will follow.

Rohatgi referred to the Indian scenario before the arrival of Muslim and British rulers and said society permitted such sexual acts.

“You go to Khajuraho, sexual acts are depicted there and they are there for several hundred years...There is no European influence. British influence prevailed since they made the laws and this Victorian model of decency was imposed,” he said, adding it exhibited a “colonial mindset” and must go now.

“We are being buried under the pressure of the majority.

This court cannot stop at annulling section 377 of the IPC (penal provision against consensual gay sex). It should grant us equal rights to marry like heterosexual couples so that we can live in society with dignity,” he added.

The arguments will resume tomorrow.