Same-sex marriage hearing DAY 1: Notions of man, woman, genitals do not define gender in absolute sense, Supreme Court says

The notion and definition of gender is not limited to a person's genitals, the Supreme Court on Tuesday remarked while hearing petitions seeking the recognition of same-sex marriage in India. [Supriyo and anr v. Union of India

A Constitution Bench led by Chief Justice of India (CJI) DY Chandrachud and also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli today began hearing arguments in the batch of pleas seeking legal recognition of same-sex marriage.

During the course of the hearing, CJI Chandrachud remarked,

"The notion of biological man and biological woman is not absolute. There is no absolute concept of a man or an absolute concept of a woman at all. Man is not a definition of what your genitals are. It's far more complex. That's the point. So even when the Special Marriage Act says man and woman, the very notion of a man and a notion of a woman is not an absolute based on what genitals you have". 

Solicitor General (SG) Tushar Mehta refuted the same, arguing,

"That is not a notion. It is restricted to the genitals. I did not want to say this."

To this Justice Kaul added, "We said it is not a mandatory thing that the whole society must accept something. Changes will always come in..."

Today's hearing began on a heated note, with the Central government saying that it will re-examine whether or not it will participate in the proceedings.

SG Mehta told the Constitution Bench that the issues the Central government had raised as regards the maintainability of the petitions should be heard first. He said that he was raising this request since the issue falls within the domain of Parliament.

The CJI, however, said that the Bench will hear the petitioners first for sometime to understand the broad issues canvassed.

"I am in charge I will decide...We will hear the petitioners first. I will not allow anyone to dictate how proceedings will happen in this court," CJI Chandrachud shot back.

Before the petitioners began their submissions, Justice Kaul and the CJI proposed limiting the scope of the petitioners' submissions to recognition of same-sex marriage under the Special Marriage Act instead of also delving into personal laws.

"For the time being, can we not step into personal laws at all and restrict to Special Marriage act by giving it a gender neutral interpetation and evolve a civil union concept? From Navtej till now, there has been acceptance of same-sex relationships, which is also universal. And in this evolving consensus, court is playing a dialogical role and we know about our limitations," the CJI said.

Senior Advocate Mukul Rohatgi began his arguments, seeking recognition of the petitioners as spouses under law.

"That right will be recognized by the State as under the Special Marriage Act and the marriage will be recognized by State after declaration of this Court...because even now, we are stigmatized if we are holding hands and walking, even after the [Article] 377 judgment."

"In the absence of legislation, how does the Court decide? Is there a contra where courts can intervene or there is a legislative space where courts can intervene?" the CJI asked.

Justice Kaul added the Court would have to examine what the enforceability of the right to marry is.

Appearing for another petitioner, Senior Advocate KV Vishwanathan said,

"We do not have to wait for the legislature, since popular will is an anathema to fundamental rights."

The CJI cautioned that it also has to allow Parliament to respond to the evolution of society.

"We cannot deny the fact that Parliament is indeed relevant here."

Senior Advocate Menaka Guruswamy pointed out how same-sex couples were currently discriminated against in banks and have to keep coming to court for individual grievances.

Senior Advocate Abhishek Manu Singhvi emphasised that any marriage between two consenting adults has to be allowed and recognised.

Pertinently, he said that the requirement of notice of objections under the Special Marriage Act needs to be struck down. The CJI appeared to agree, saying,

"Even in heterosexual marriage, notice for marriage inviting objections is unconstitutional."

Rohatgi in his submissions stressed on the stigma that LGBTQIA+ individuals face.

"If you do not have full enjoyment of life, you will not have dignity. We are facing the disdain of the majority...what about the stigma in place?"

The CJI summarised the senior counsel's submissions as being,

"Yes, each of us are social animals and so State cannot say that we will leave you alone. But State cannot say that benefits of social institutions will be deprived and there is positive obligation on the State, that is what you are saying."

He went on to say,

"On one hand, LGBTQ community is entitled to say that they can make their own choices and live as they want and then society cannot say that you continue to live but we will not recognize you and deprive you benefit of conventional social institutions..."

SG Mehta argued that protections for LGBTQIA+ individuals already existed under the Transgender Persons Act.

Senior Advocate Kapil Sibal then weighed in, arguing that even personal laws would have to be reformed as there were consequences of recognising same-sex marriage in various provisions.

The Bench will re-assemble to continue hearing the matter tomorrow.

Read live updates from the hearing here.

Read about the 20 petitions seeking legalisation of same sex marriage here.

Read more about the hearing here.

[Watch the entire hearing here]

[Follow our live-coverage of today's hearing]