The historic hearing on the matter of Marriage Equality/ Same-Sex Marriage continued on day two. Senior Advocate Mukul Rohatgi who asked for half an hour yesterday from CJI to conclude his submissions opened with his argument that the scope of the Right to Privacy should be widened to incorporate the Right to Sexual Privacy.
"The right to privacy must be granted the sanctity of a natural right and be protected under the Constitution as fundamental to liberty and the soulmate of dignity," he said.
Citizens of a democracy cannot be compelled to have their lives pushed into obscurity by oppressive colonial legislation, he argued stressing that choice of sexuality is at the core of privacy.
He reiterated his demand to make terms 'gender-neutral' in the SMA statute, i.e. 'Spouse' for husband and wife 'Person' for man and woman. He urged that the heteronormative framework be deconstructed and public spaces be made equally accessible to the homosexual population.
"We are being buried under the pressure of the majority wherever we go, whoever we apply. People say we are abnormal...But that is not the law; it is the mindset which is troubling us in our daily lives... In the absence of a protected zone of privacy, individuals are forced to conform to societal stereotypes. Puttuswamy has characterised the right to privacy as a shield against forced homogeneity and an essential attribute to achieving personhood. I have the shield, but that shield must be made explicit", he submitted.
Mr. Rohatgi opined that Sexuality cannot be construed as something that the state has the prerogative to legitimize only in form of rigid marital procreational sex.
"Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives...Not a narrow or pedantic view, but we should have a comprehensive view...The Constitution protects the fluidity of sexual orientation...By criminalising consensual acts, the state is denying its citizens the right to intimacy...Citing Shakti Vahini case (right to marry a person of your own choice), Lakshmi case (360/2021)and Deepika case (1088/2022), which lay down 'that every person is entitled to marry a person of his/her own choice." get said.
He emphasized that every facet of life where we face pitfalls should end and law must take positive steps.. state should come forward and say that they accept gracefully.
"This Court is the guarantor and protector of fundamental rights...This Court takes the lead of this moral and legal authority in providing the declaration saying that this is the next step after 377...Saying to society to remove the dogma and the stigma...Obligations rest heavily on this Court because of its moral authority and public confidence in this Court."
He argued that if a minority has a right and that right is clouded in some form by the majority and the state accepts the majority as correct, then they are correct in choosing the course of courts and the court is obliged to remedy them.
"There cannot be a mandamus in parliament, and does not have a voice in the parliament. I have nowhere else to go than to come to this Court...If one man is affected, he has the right to say he is involved; if his grievance is valid, the court will have to remedy his right."
In addressing LGBTQIA++ rights, the Constitution speaks to the rest of society and in recognizing the rights, the Constitution asserts itself as a text for governance promoting true equality, he said weighing that if the Constitutional Declaration is granted, then all subservient laws must be read in conformity with the Constitution.
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(With input from news agency language)
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