Marriage Equality Case | 'Declaration Of Right To Marry Necessary To End Stigma Against LGBTQIA+ Community', Mukul Rohatgi Argues In Supreme Court

On the first day of the hearings in the batch of petitions seeking legal recognition for same-sex marriage in India, the primary arguments raised before the Constitution bench of the Supreme Court pertained to marriage being a way to help assimilate queer individuals in the society better and end stigma against them. The matter was heard by a bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. This article highlights the arguments raised by Senior Advocate Mukul Rohatgi, appearing for the petitioners, and Senior Advocate Rakesh Dwivedi, opposing the batch of petitions. Other stories on the hearings can be found here and here. 

Declare Same-Sex Marriages To Be At Par With Heterosexual Marriages: Senior Advocate Mukul Rohatgi

Senior Advocate Mukul Rohatgi, appearing for the petitioners, prayed for a two-fold relief. First, he asked for a declaration of marriage as a fundamental right for queer individuals which has been implicit in the constitutional guarantee of Articles 14, 19, and 21 of the Indian Constitution; and second, that the same also finds recognition with an appropriate reading of the Special Marriage Act. Beginning his arguments, he first sought to establish that the queer community enjoyed equal rights as their heterosexual counterparts. He relied upon the judgements in Navtej Singh Johar v. Union Of India, Justice K.S. Puttaswamy (Retd) v. Union Of India, and Anuj Garg & Ors v Hotel Association Of India, among others to establish the same. Further, while referring to the Preamble of the Constitution, Rohatgi stated that rights guaranteed under the Constitution were for all individuals. He added that such rights included equality, justice, fraternity, and liberty among other things. 

Following this, he argued that if the rights of the queer community were identical to their heterosexual counterparts, there was no reason for them to not be granted the right to marry.

Taking the court through marriage equality rights across the globe, he stated that a similar development had taken place in other States including the US and the UK. He then argued that stigma against the queer community would only end once they become at par with the heterosexual community. He said–

"We want a declaration that we have a right to marry, that right will be recognised by the State and will be registered under Special Marriage Act. Once that happens, the society will accept us. The stigma will only go once the state recognises it. That will be full and final assimilation. I want to say that your lordships may broadly read 'spouse' in place of 'man and woman' or 'husband and wife'."

On the Centre's argument that the petitions solely represented 'urban elitist views' and that the 'popular will' of the people was to exclude same sex couples from the institution of marriage, Rohatgi argued that society and people were resistant to change and would follow the law. He also argued that the law and the Constitution were static in nature and did evolve with time. He submitted–

"Take the Hindu Widows Right to Remarry Act, 1860 something. The society was not ready. Till even early 90s the society wasn't ready. Sometimes mindsets do not change. Parliament or the legislative assembly sometimes acts with more alacrity, sometimes with less. Navtej was 5 years ago. In 5 years we've seen the change. Some stigma is still there. That stigma can only be removed with the declaration - just like a declaration was made in Navtej."

Rohatgi added that the concept of marriage itself had changed over the last 100 years with practices such as child marriages or marrying multiple number of times under Hindu law having been outlawed. He also added that the test of popular acceptance did not furnish a valid basis to disregard rights which were conferred upon individuals with the sanctity of constitutional protection. He said–

"Because we're minuscule, because we have faced this over the years, because we have been sidetracked, because we're looked at with disdain, because we're looked as queers – they are saying you're not good. I cannot be discriminated upon because we may be ten thousand and the others are ten crores. This is the core of my submission."

Continuing his submissions, Rohatgi further contended that–

"Procreation, in today's scenario, can also include adoption, IVF, surrogacy- it need not only be procreation in one form. I don't want merely an amendment to the Act without the declaration. Because if your lordships only interpret the act, tomorrow it can be amended and then we're sunk. Thus, I request a constitutional declaration of marriage akin to heterogeneous groups."

Finally, he stated that it was not enough for queer individuals to have privacy to make their choices but it was also essential for the State to grant them a right equally to have the recognition of social groups. Here, he gave the example of reservations and stated that affirmative action was necessary for backward classes to bring them at par with others and successfully assimilate them into the society. CJI DY Chandrachud, with the aim of fully understanding his submissions orally remarked–

"So you are saying that there are two corresponding rights and duties- on one hand, the LGBTQ community or a same sex couple is entitled to say that I have the right to make my own choices to live as we wish and that's a part of our dignity, privacy. But equally, society can't say that well we'll recognise that right and leave you alone. So we will deprive you of benefits that conventional social groups have. In a sense privacy is an individual concept which allows you to get to the core of your being and allows you to live your life as you want. But equally, each of us are social individuals and therefore for society to assert that we'll leave you alone, we will deny you the recognition of those social relationships which go to the fulfillment of life. That according to you is wrong."

Heterosexual Unions Responsible For Procreation, Cannot Bet Treated At Par With Same Sex Relationships: Senior Advocate Rakesh Dwivedi 

Senior Advocate Rakesh Dwivedi, while praying for States to be impleaded as parties in the petitions argued that same-sex couples could not be treated at par with heterosexual couples. He said–

"In Navtej, your lordships didn't grant absolute equality, you just made some observations...Navtej is not a final authority on complete equality between the relationships."

While stating that heterosexual relationships had being existing since time immemorial and were responsible for the perpetuation and very existence of human race, he argued that the same was not true for homosexual relationships. He added–

"Without it (heterosexual relationships), society itself will not live. The other relationship exists merely because there is love- just one part of heterosexual union. Marriage amongst heterosexuals is not the gift of law. It has been existing since Rigveda. Manu smriti continued it. The core purpose was to perpetuate the human race. Without it, the relationship cannot exist. Same sex is not a new phenomenon. It existed earlier too but they never claimed equality, they were never given equality. They have existed but not on an equal level. The two unions are different, they're on different pedestals."