Same-sex relations not an urban elitist concept: Supreme Court

Same-sex relations and queer rights are not urban elitist concepts as claimed by the Centre, the Supreme Court remarked.

"State cannot discriminate against an individual on the basis of a characteristic over which the individual does not have control. When you see it as innate characteristics, then it counters (argument of) urban elitist concept.. urban perhaps because more people are coming out of the closet. Government does not have any data also to show that same sex marriage is an urban elitist concept," Chief Justice of India, D Y Chandrachud heading a five-judge Bench said.

Earlier, the Centre filed a fresh affidavit seeking the views of all states and Union Territories on the matter.

As per the affidavit, the matter falls within the legislative domain and thus views of all States and UTs on the same are necessary," the Centre said.

In its affidavit, the Centre asked the Supreme Court to make all the States and Union Territories in the country a party to the ongoing proceedings. The debate on same-sex marriage falls within the legislative domain of the States and hence they should be party to the hearing.

The Centre also told the court that it had issued a letter on April 18, the day the Supreme Court began hearing, inviting comments from and views from all States on the seminal issue raised in the present batch of petitions.

"The Union of India in the absence of notice to the States and Union Territories on the present issues, has started consultation with all States, in order to ascertain the views on the issue, the Centre said on the issue.

When Solicitor General Tushar Mehta mentioned the application and renewed the request for making the States as a party in the case, the Bench said, 'that's excellent. Since you have informed every State about the matter, they are now unaware of the proceedings."

The Centre responded by saying that the State's right to legislate on the subject will be affected by any decision of the Court.

"As States have already legislated on the subject through delegated legislations, they must be imploded as necessary parties and heard in the case," the Centre also submitted.

Senior advocate Mukul Rohatgi appearing for the petitioners said that apart from a declaration that same-sex couples have a right to marry, the Supreme Court should also declare that all consequential rights rights-adoption, secession, inheritance, must be made available to the same-sex couples as it is presently available only to heterosexual couples.

Rohatgi referred to Sections 36 and 37 of the SMA, which gives rights only to women over alimony and maintenance by the husband. "Apart from anything else, so many years have gone by that this could be otherwise unconstitutional today to say that only a husband will pay (maintenance) to the wife. Maintenance under the Hindu Marriage Act is either way. If the wife is earning much more, the wife will pay. This (provision under SMA) is unconstitutional today," Rohatgi said.

He also said that the Court's declaration recognising same-sex marriage will drive society to accept it, whether or not Parliament follows it up with a law.

The Centre filed an application after the Supreme Court declined to implied the States as a party on pleas relating to the conferment of right to same-sex couples.

The Supreme Court Bench headed by Chief Justice of India, D Y Chandrachud also comprises Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli.

The Bench while refusing to adjourn proceedings until the Centre completed consultation with the States asked Rohatgi not to labour on the request for making States parties to the case and to proceed and argue on the merits of the case.

The proceedings on Tuesday began on a heated note with the Centre saying that it would re-examine whether to take part in the proceedings or not.

The batch of petitions seeks legal recognition of same-sex marriages undertake law, while arguing that the right to marry a person of one's choice should be extended to the LGBTQIA+ citizens as well.