Centre vs Supreme Court on same-sex marriage: 9 points

The proceedings in the Supreme Court witnessed heated arguments between the Bench headed by Chief Justice of India, D Y Chandrachud and the Centre in the same-sex marriage case.

The Supreme Court had refused to implead the States in the case, following which the Centre filed an affidavit seeking the same.

Here are some take-aways from the Supreme Court:

• Chief Justice of India, D Y Chandrachud who is heading the five-judge Bench said there was no absolute concept of man or woman and postulation was far more complex than categorising a person according to the born-with genitals.
• Solicitor General Tushar Mehta said such a fluid concept of man or woman would render several laws unworkable, which differentiate a biological man from a biological woman.
• Whether the SC confines the remit to Special Marriage Act or not, tomorrow an LGBTQ member who wants to remain a Hindu would seek the right to marry under Hindu Marriage Act. That is why the Centre is saying that since marriage is a socio-legal institution with rule-making power given to states, all states should be heard on the preliminary issue - whether the court is the right forum to decide it," Mehta said.
• "Even in SM Act, the legislative intent has throughout been on a relationship between a biological male and a biological female," Mehta said.
• "It is a very important value judgment you are making. You are saying that the very notion of a biological man or a biological woman is absolute," the CJI said.
• "Biological man means a biological man. It is not a notion." The CJI said, "It is a notion. There is no absolute concept of a man or absolute concept of a woman at all. Biological definition is not what your genitals are. It's far more complex, that is the point. Even when the SM Act says man or a woman, the very notion of a man or woman is not absolute based on what genitals you have," Mehta argued.
• "Biological man means what genitals he has." When Justice Kaul said "that is a point of view," Mehta said, "For men, irrespective of other attributes than genitals, there is a separate age limit for marriage prescribed. The SC has to examine whether marriage is a fundamental right, that is to marry without law. If the notion of a man and woman is taken as yardstick, then the SC would render several laws unworkable. If one has the biological genitals of a man but feels like a woman, then how would that person be treated under Criminal Procedure Code? As a woman, can the person be called for recording of a statement before police after a particular hour of the day? Several issues are to be gone into. It is better that Parliament debates on this," Mehta said.
• "If we are not touching personal law, why should states be heard? We are confining it to SM Act and whether we can read it as a person instead of man and woman. They may have opened a wide chapter, we do not want to open the wide chapter. We can't be compelled to hear everyone."
• The CJI said, "We are trying to steer a middle course." When the SG said the present case would open a window for others to come to court on recognition of same-sex marriage in personal laws, which should be left to Parliament, the CJI said, "Windows will willy nilly open. Society is not dependent on anything," Justice Sanjay Kishan Kaul also on the five-judge Bench said.