SC hears pleas for same-sex marriage: ‘Not conceived as criminal, but neither as a person’

LGBTQ members take part in a pride parade, in Nagpur, on January 7, 2023. PIC/PTI

The very notion of a man and a woman is not "an absolute based on genitals", the Supreme Court said on Tuesday while discussing the ambit of gender and whether it expanded beyond the biological sex of a person.

In a day-long hearing on the pleas seeking legal validation for same-sex marriages, a five-judge constitution bench headed by Chief Justice D Y Chandrachud took note of submissions in favour and against the petitions, and one of them was that even the Special Marriage Act has terms like "a man and a woman" and hence using term ‘person' instead may unsettle existing statutes.

"It is not the question of what your genitals are. It is far more complex, that's the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals," said the bench, which also comprised Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

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Senior Advocate Mukul Rohatgi, representing some of the petitioners, said law can't remain static and should change with time, adding that if rights have to be identical, then his clients must get the recognition of their union. "We should not be discriminated because LGBTQ is 10,000 and the majority is 10 crores. That is the core of our submission. Other side says we are not equals as if we are in 1920s or 1930s and that we have to be happy with just the 377 judgment. Section 377 means live the way you want to live in your house but if you come out then face disdain of majority," Bar and Bench quoted Singhvi as saying.

"If we have fundamental right under Articles 14, 15 and 21...our full enjoyment of rights includes the right to a dignified life...once the court and the state recognise it, the stigma goes away. There is no need for parliament since I need not wait as there is a violation of fundamental right in daily life. "I'm not conceived as a criminal, but I'm neither conceived as a person, who can stand shoulder-to-shoulder," Singhvi concluded.

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