Delhi: Supreme Court of India had been dealing with the case of permitting ‘same-sex marriage’ for a few years. Finally, the Supreme Court’s bench consisting of 5 honorable judges has asked for a three-day hearing of the petition. This case is a landmark case similar to the Obergefell v. Hodges case of the U.S. Supreme Court which ruled same-sex marriage is the fundamental right of citizens of America.
Day-1 of the hearing witnessed many dramatic events. The petitioners include Mukul Rohatgi, Dr. Menaka Guruswamy, Arundhati Katju and others. Defendants include Solicitor General Tushar Mehta, Kapil Sibal, and others.
On the first day, primary arguments on both sides and major arguments from petitioners were heard. Petitioners majorly argued that the court should interfere and amend the ‘Special Marriage Act’ to change the words ‘husband and wife’ to spouses. This change will allow people to marry regardless of gender/sex and sexual orientation. The defenders had two arguments. They argued that heteronormative marriage is the only marriage that shall be recognised by the law.
Secondly, if there are any changes to be made, they shall be made by the legislative with the consent of the states.
Dr. Menaka Guruswamy’s speech on the importance of legal recognition of human relationships was appealing. She asserted that the changes to the law not just make a personal difference to the queer community, but also promote social acceptance. Not recognising the relationship between the queer will have legal, social, financial, and even medical consequences (Not being able to get family medical insurance for example). Since it is a matter of fundamental rights of individuals, the court has to interfere immediately and assert the rights of the people. Her magnificent speech can be documented and referred to by generations.
Mukul Rohatgi’s arguments majorly spread around why equal marriage rights are a fundamental issue and can’t be decided by the majoritarian governments. He referred to the history of different cases where the Supreme Court intervened when fundamental rights are in trouble. He also explained about equal marriage rights are aligned with the Constitution’s idea of secularism. He argued on the fallacy of the idea that majoritarian opinions are true and valid.
The highlight of the day was the honorable Chief Justice of the Supreme Court and the member of the bench Justice Chandrachud by stating “Gender is not a concept of what your genitals are, it is far more complex” when defendants argued about marriage being about biological men and women. CJI Chandrachud was acquainted with most of the references made by the petitioners. The judgment made by Justice Chandrachud in 2018 to repeal section 377 (case of decriminalising queer relationships) was referred by petitioners for various arguments.
Defendants argued that this matter comes under the concurrent list so both the Union Government and the State Governments shall be involved in the law-making process. Kapil Sibal being a Rajya Sabha member appointed by Congress argued for defenders, though representing Jamath. It was a humorous moment when CJI asked ‘Who are you representing today?’
Day 2 of the hearing will be majorly led by the defendants. Arguments like marriage is not a fundamental right, the law can’t be made just by the court, etc. can be anticipated.
The hearing can be watched live through Supreme Court’s Youtube channel https://www.youtube.com/@supremecourtofindia5950