Marriage Equality Case | CJI DY Chandrachud Questions Argument That Adoption By Queer Couple Will Have Negative Effects On Children

While hearing the marriage equality pleas, CJI DY Chandrachud orally remarked that the argument that a negative psychological impact would be caused to children raised by queer couples was belied by the fact that the law as it stands today already allows single individuals to adopt. The bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha was discussing the consequential rights marriage bestowed upon individuals. Senior Advocate Dr AM Singhvi, appearing for the petitioners, argued that one of the many important rights that flowed from marriage was adoption. To this, CJI DY Chandrachud said–

"Incidentally, even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt. So the argument that this will create a psychological impact on the child is belied by the fact that today as the law stands, it's open for them to adopt. It's just that the child loses the benefits of parenthood of both the parents."

During an earlier hearing in the case, CJI DY Chandrachud had orally remarked that it was not necessary that a child raised by a same-sex couple will have a homosexual orientation.

More on courtroom exchanges and arguments raised in the matter today can be found here and here. 

In the second half of yesterday's hearings, Dr. Abhishek Manu Singhvi, appearing in the writ petition filed by Utkarsh Saxena and Ananya Kotia, other than arguing on the consequential benefits of marriage, also contended that the Special Marriage Act (SMA) was an agnostic legislation which was created as an alternative statute to recognise unions which were not socially ingrained concepts of marriage. He argued that SMA recognised all marriages which were not "culturally accepted" such as inter faith marriages. He said–

"The SMA is a non religious marriage related legislation. This addresses the point of the respondent which is "cultural understanding of marriage as a union". Cultural understanding of marriage was not the basis of SMA."

Seeking clarification for his submission, CJI DY Chandrachud asked–

"So you're saying that the Special Marriage Act was intended to be agnostic to faith. So by reading it as agnostic to sexual orientation, you are not making a leap of faith."

Dr Singhvi replied in an affirmative and while continuing his arguments stated that one could not trump equality principles by reference to societal values. 

Through his submissions, Dr Singhvi sought the reading down of the SMA to include marriage of queer individuals. He submitted–

"It is wrong to think that text of the statute is a limitation. It is wrong to think that even intent is a limitation. With evolving dynamics of time and society, the two tests are to make it treaty compliant. Text evolves over time, even intent evolves over time. Your lordship is looking not to strike down anything but to make it constitutionally compliant." 

The next prong of Dr Singhvi's arguments pertained to discrimination, freedom of expression, and dignity. He stated that if the court did not read down the SMA, it would result in a hierarchy which would be antithetical to Article 14 of the Constitution. He added that the freedom of expression included the freedom or the right to express one's gender identity in all its manifestations. He said–

"Third and the last prong is the dignity point under Article 21. This is actually intersection of Article 14 with Article 19(1)(a). The right to express one's gender identity is being questioned by the State without a law under Article 19(2). The right is being questioned on the ground that the rights heterosexuals have, non heterosexual couples do not have. The projection of the gender identity, which is a part of free speech, is inhibited by your stand which allows that right unfettered in heterosexual category. If they can't do it for heterosexual couples because your lordships will undoubtedly hold it as an unreasonable restriction, how is it a reasonable restriction for me? The silence is being read in the counter and the stand of the government as a restriction."

To this, CJI DY Chandrachud said–

"It is not so much as statutory silence as much as failure to enact a law."

Dr Singhvi replied–

"More than failure to enact, they will not recognise."

Dr Singhvi also argued that dignity was "to treat everyone with equal concern and respect" and not to send a message that any individual is worth less because of their ascriptive characteristics. He stated that the discrimination faced by the queer community was on ascriptive characteristics, that is, those characteristics which are pre-determined and do not exist by choice of an individual. Ascriptive characteristics include race, caste, ethnicity, national origin etc. Dr Singhvi argued–

"Here it would be sex or sexual orientation. The implied exclusion of the entire LGBTQ class from SMA is based on a sole marker of identity - sex and sexual orientation."

Read Written Submissions Of Dr Singhvi Here