The historic hearing on the matter of Marriage Equality/ Same-Sex Marriage continued on day two in Supreme Court. Senior Advocate Abhishek Manu Singhvi for petitioners began his arguments today.
At the outset, he laid the heart of the issue, which he described to be the 'right to choose' and 'discrimination based on ascriptive characteristics'. Another facet, he added is not the state alone which threatens these core constitutional values; it is also private groups/ non-state actors, which are entrenched forces over the years, the LGBTQIA++ community needs protection from these private groups.
When Justice Bhatt asserted that the value of the right is such that the state is under an obligation to protect the LGBTQAI+ Community, referencing to abrogation of Section-377 IPC and asked what is preventing the state from doing so now, he intriguingly remarked that decriminalization does not guarantee them the right to live with the dignity of a married couple.
He raised the issue of the petitioners being discriminated against based on ascriptive characters."If there is discrimination or violation of dignity or violation of the larger concept of free expression,t is based on ascriptive character...The implied exclusion of the entire LGBTQIA++ class from SMA (special marriage act) is based on the sole marker of identity- sex and sexual orientation. So the conceptual point is that the implied inclusion of this class is based on the sole ascriptive characteristics....The government of India is saying that you're liable for being excluded only because of ascriptive characteristics - involuntary, external, and not by choice."
SMA was established as an alternative, to socially, culturally and legally ingrained concepts, the very creation of SMA was to include what might be called 'unpopular marriages, interfaith marriages, socially sanctioned marriages', he emphasized.
He said that Marriage is a vital foundation and is not done to avail 'tax benefit' only but is by itself is the source of dignity, fulfilment and; respect, there are not merely adjectives, it does have permanence and is vital.
"I cannot enjoy these rights, namely surrogacy, interstate succession, tax exemption and tax deductions (not an exhaustive list, merely illustrative), merely because I am the excluded class, I cannot marry and thus I do not have these benefits."
He stressed that a person's sexual orientation is intrinsic to their being, it is connected with their individuality and identity, a classification which discriminates between persons on their innate nature, will be violative of their fundamental rights and cannot withstand the test of constitutional morality.
At this juncture, the CJI significantly remarked that the state cannot discriminate on the basis of a characteristic over which the individual does not have control.
"When you see it is innate characteristics then it counters the urban elitist concept.. urban perhaps because more people in urban areas are coming out of the closet... Also the government does not have any data also to show that same-sex marriage is an urban elitist concept. Something which is innate cannot have a class bias."
Mr. Singhvi further submitted that exclusion of the community of petitioners fails the test of Article 14 as SMA is a secular law which was established to serve as an alternative to individuals who could or did not want to solemnise marriages.
"As per SMA, the act was passed to Court to provide a special form of marriage which can be taken advantage of by any person in India or Indian nationals in a foreign country irrespective of the religion they profess... In contrast to HMA, SMA is areligious/ non-religious marriage-related legislation."
Since government has defined marriage as a union between a man and a woman and so, by definition you (LGBTQIA++) are wrong and illegal, it is an example of self-validating reasoning, the same cannot be a defence to the Article 14 test as equality principles cannot be trumped by reference to societal values.
He went on to argue that the predominant understanding of family, both in law and society that it is a single unchanging unit with a mother and father who remain constant over time ignores many circumstances which will lead to a change in one's familiar structure and the fact that many families do not conform to the expectation, to begin with.
He pointed out that there is a 'statutory silence' even after abrogation of Section 377 IPC and lack of recognition is actually a full restriction, de facto and de jure.
"To treat everyone with equal concern and respect, and not to send the message that any individual/group is less worthy because of their ascriptive characteristics...With it comes the ability to participate on an equal footing in social constructs which is also part of dignity...The central importance of marriage as a social institution means an ability to participate in it on equal terms is a question of dignity, when the state excludes a set of people from participation by comparing their choice with the state, proscribing as harmful noxious business activities, it communities both to excluded and rest of the society, that these individuals are less than complete members of society. It is, therefore, a message of subordination," he said.
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(With input from news agency language)
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