A bench of Chief Justice DY Chandrachud and Justice Hima Kohli issued notice to the Centre and asked it to file its response in four weeks to two petitions – one filed by Hyderabad-based partners Supriyo aka Supriya Chakraborty and Abhay Dang and the other by Delhi-based partners Parth Phiroze Mehrotra and Uday Raj.
The SC also enlisted the assistance of attorney general R Venkataramani by issuing notice to him.
Non-recognition of marriages violates basic rights, SC told
Seeking a gender-neutral Special Marriage Act and therefore legalisation of marriages of the LGBTQ+ community, petitioners in the Supreme Court said because of denial of the right to marry, same-sex couples are denied basic and elementary rights of adopting and parenting children, enjoying property rights through inheritance and succession, and mental peace, which together have a debilitating effect on their emotion and health, thus violating their basic fundamental rights.
The petitioners – two same-sex couples – said non-recognition of same-sex marriage is an act of discrimination that strikes at the root of dignity and self-fulfilment of the LGBTQ+ couples. “Structural changes as well as attitudinal changes are essential for the members of the LGBTQ+ community and for their families. Equality is not achieved with the discrimination of homosexuality alone but must extend to all spheres of life, including the home, workplace and public places,” they said.
Appearing for the petitioners, senior advocates NK Kaul, Mukul Rohatgi, Menaka Guruswamy and Saurabh Kirpal told the bench that the SC, in its September 6, 2018 judgment in the Navtej Singh Johar case, had said that members of the LGBTQ community cannot be prosecuted or persecuted under Section 377 of the Indian Penal Code as they have a right to individual sexual orientation.
The SC decided to entertain the petitions after Kaul told the court that as many as nine petitions on the same issue are pending before the Kerala and Delhi high courts and that the Union government had told the Kerala HC that it would seek transfer of all these cases for a uniform ruling by the apex court.
They said the SC had also ruled in the Johar judgment that “members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights, including the liberties protected by the Constitution”.
The SC had also said, “The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour is intrinsic to the constitutional protection of sexual orientation. Members of LGBTQ are entitled to the benefit of an equal citizenship, without discrimination, and to equal protection of law.”
Rohatgi said the petitioners do not want to get into the controversy of seeking amendments in religion-specific laws like the Hindu Marriage Act, but are requesting the SC to interpret the SMA to make it gender-neutral so as to enable same-sex couples to marry and register their marriages and enjoy a married life like other citizens.
Hyderabad based Supriyo’s petition, drafted by Arundhati Katju, said, “At the heart of personal liberty lies the freedom to choose who we are, to love whom we will, and live a life that is true to our conscience, not only without the fear of persecution but in full-hearted joy and as equal citizens of this country. Despite being free to love each other, Supra and Abhay (Supriyo aka Supriya Chakraborty and Abhay Dang) still cannot have a happy marriage filled with joy and recognition.”