No data from government to indicate it is ‘urban-elitist concept’, SC on same-sex marriages

The top court stressed that the state cannot discriminate against an individual on the basis of a characteristic over which the person has no control, and something which is innate cannot have a class bias.

Senior advocate Abhishek Manu Singhvi, representing some of the petitioners, submitted before a five-judge bench headed by Chief Justice of India D.Y. Chandrachud that a person’s sexual orientation is intrinsic, it is connected with their individuality and identity, a classification which discriminates persons on their innate nature would be violative of their fundamental rights and cannot withstand the test of constitutional morality.

At this juncture, the Chief Justice said: “The state cannot discriminate against an individual on the basis of a characteristic over which the person has no control.” Singhvi agreed and this is very simply put and that is also the essence of it.

The Chief Justice further added: “When you say it’s an innate characteristic, it’s also an answer to argument in response to the contention that it is elitist or urban or it has a certain class bias. Something which is innate cannot have a class bias… it may be more urban in its manifestations because more people in urban areas are coming out of closet.”

He stressed that there is no data coming out of the government to indicate this is urban, no data at all. Singhvi replied that every averment in the Centre’s counter- affidavit is without single survey, single data, or single test.

Singhvi emphasised that the most important is discriminatory exclusion of this class on only sex and sexual orientation and added that marital status is a gateway to other legal and civil benefits such as tax benefits, inheritance, and adoption.

The Centre, in its application, has told the Supreme Court that demand for same-sex marriage is a “mere urban elitist views for the purpose of social acceptance”, and recognising the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law.

It stressed that petitions which “merely reflect urban elitist views” cannot be compared with the appropriate legislature which reflects the views and voices of a far wider spectrum and expands across the country. “The competent legislature will have to take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes,” it added.