Same-sex marriage: Athlete Dutee Chand supports marriage equality, says love has no boundaries
The bench – also comprising justices Sanjay K Kaul, S R Bhat, Hima Kohli and P S Narasimha – had reserved its verdict on May 11 after 40 hours of arguments spanning 10 days concluded. Responding to broad hints from the bench that it would consider issuing a constitutional declaration for same-sex couples that, while being sensitive to their plea against discrimination, could stop short of giving marriage rights to them, senior advocate A M Singhvi had argued that LGBTQIA+ community members did not merely seek a declaration of their right to marry, but an interpretation of the SM Act that would allow solemnisation and/or registration of non-heterosexual marriages.
The Union government through solicitor general Tushar Mehta resisted the plea by arguing that the right to marry was not a fundamental right and that any recognition of same-sex marriages by the apex court would tantamount to trespassing into the legislative domain.
The main argument of the LGBTQIA+ community was that discrimination in access to the institution of marriage on the ground of ascriptive characteristics – in particular, sexual orientation and gender identity – violated constitutional guarantees of equality (Article 14), non-discrimination [Article 15(1)], freedom of expression [Article 19(1)(a)], and privacy and dignity (Article 21). They sought marriage rights equal to heterosexual couples.
While senior advocate Menaka Guruswamy argued for upholding the LGBTQIA+ community’s basic fundamental right to equality in getting married, senior advocate Saurav Kripal said a mere declaration on the right to marry without consequential rights of adoption etc would prove too little for the community.
Mehta had argued that the SC‘s Navtej Johar ruling in 2018 had decriminalised gay sexual relationships to give cohabitation rights to same-sex couples, but it conferred no fundamental right on the LGBTQIA+ community to seek statutory recognition of their unions as marriages.
“The right to choose a ‘partner’ does not necessarily imply the ‘right to marry’ such a person over and above the procedure established by law. Marriage is a legal privilege conditional upon statutory or societal conditions,” he had argued and pointed to the slippery slope the court would tread given the fluidity of sexual orientation of many categories of LGBTQIA+ community.
The Centre had said, “Right to express love and compassion may fall within Article 19(1)(a) of the Constitution. However, an expression of love, compassion and companionship does not need a recognised social legal institution. The petitioners must show the impossibility to express love, compassion and companionship without legal and social recognition to same sex marriage.”
On the one hand, the petitioners said there should be no state interference in personal relationships, on the other hand they tell the court to compel the state to recognize same-sex marriages, provide statutory backing, and regulatory framework akin to that for heterosexual couples, SG Mehta argued.