Your prerogative: SC to Centre on legalisation of same-sex marriage

A five-judge Bench of the Supreme Court has sought to know the canvas of the petitioner's case seeking legalisation of same-sex marriage.

The Centre told the Supreme Court that since marriage is included in concurrent list of Constitution, States must be heard to decide whether legislature or court is the forum to decide the issue.

Solicitor General Tushar Mehta insisted to the court that it should first decide on the preliminary objections. The court said that it would decide on what manner the proceedings would be conducted. Mehta replied by saying that if the Supreme Court is not deciding the preliminary first, then he would have take instructions on the level of the Centre's participation in the proceedings.

To this the Bench said that it is prerogative of the Centre to take part in the proceedings or now and no one forcing it to participate. The court then went on to proceed to hear the petitioners' counsel Mukul Rohatgi, who said that the same-sex couples want respectability in society by getting the right to marry.

At least 15 petitions on the issue were referred to a larger Bench comprising Chief Justice of India, D Y Chandrachud.

The other judges on the Bench are Justices S K Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli. The Centre has termed the petitions as merely reflecting an 'urban elitist view.'

There has been a greater demand for legalising same-sex marriages, following the decriminalisation of Section 370 of the Indian Penal Code (IPC) in 2018.

The petitions have been supported by the Delhi Commission for Protection of Child Rights. It has said that same-sex family units are normal and that the government should intervene and take steps to encourage the same. "Multiple studies have argued that same-sex couples can be good parents...there are over 50 countries that allow same-sex couples to legally adopt children, the child rights body argued.

The petitioners have in their plea sought wider constitutional entitlements based on the right to life and personal liberty, the right to dignity, and other related rights.

The Indian Psychiatric Society too had come out in support of same-sex family units. It argued that it would promote their inclusion in society. The medical body also argued that homosexuality is not an illness.

"There are variants of normal sexuality, not deviant, and certainly not an illness. LGBTQI+ spectrum should enjoy all civil rights like education, employment, housing, income, government or military service, access to health care, property rights, marriage, adoption and survivorship benefits to name a few any form of discrimination on these rights leads to mental health issues," the medical body said.

The Centre on the other hand said, "the institution of marriage is necessarily a social concept and a sanctity to the said institution is attached under the respective governing laws and customs as it is given sanctity by law on the basis of social acceptance. It is submitted that social acceptance and adherence to societal ethos, common values, shared beliefs across religions, in case of recognition of "socio-legal institution of marriage" is not be confused with majoritarianism."

Organisations such as the RSS, Jamiat Ulama-i-HInd have opposed the validity of same-sex marriages. The Hindu organisations have said that the aim of marriage among the Hindus is not merely physical pleasure or procreation, but spiritual advancement.