Granting legal recognition to same-sex marriages may lead to citizens challenging other unacceptable relationships such as incest, the government argued in the Supreme Court today only to be snubbed by the Chief Justice of India.
Solicitor General Tushar Mehta, representing the Centre, drew a bizarre, controversial parallel between same-sex marriages and incest by presenting a hypothetical situation. He argued that based on the “right of choice”, people may then want to bat for incest.
“Kindly visualise this - from the very beginning I am attracted to those persons who are mentioned in the degree of prohibited relationships. Incest is not uncommon but it is prohibited worldwide,” SG Mehta began his argument.
He stated, "I am attracted to my sister... We are consenting adults entering into activities within privacy. And we claim our right of autonomy, right of choice... based on that, can someone not challenge that why this restriction?"
Chief Justice DY Chandrachud dismissed the parallel by calling it “far-fetched” only for SG Mehta to argue that same-sex marriages used to be far-fetched as well. His next parallel was polygamy which the CJI quickly pointed out was governed by personal law.
Justice SR Bhat pointed out that these are however “universal laws” and were accepted if not codified.
“But these are universal rules. As long as these were not codified, they were accepted. That was the law, the norm. If you're building up to this and saying there is a state interest in this relationship, one can understand,” Justice Bhat said.
The Chief Justice also corrected Mehta's understanding that the petitioners seeking legalisation of gay marriage were arguing that sexual orientation is a matter of choice. The Chief Justice stated that sexual orientation is a matter of immutable features.
“They say that sexual orientation is given to me. They say that I'm entitled to my autonomy by virtue of my sexual orientation. Sexual orientation is not a matter of choice but a matter of immutable features- that's the argument,” CJI Chandrachud said.
"One says that sexual orientation is acquirable also. Another says it is inbuilt. Let's not go into that," came SG Mehta’s argument.
The Centre had earlier questioned if the court can give legal sanction to same-sex marriage, arguing that it is the domain of the legislature. The court responded by stating that granting legal recognition to same-sex marriages could be the "arena of the legislature."
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The Chief Justice stated that once the court recognizes the right to cohabit and it may be symptomatic of a sustained relationship, the state has an obligation to provide legal recognition to all social impacts of the cohabitation.
The Supreme Court's hearing on same-sex marriage continues, with the Centre expected to provide a report on the legal rights and recognition that can be granted to people of the same sex living together on the next date of hearing.
The Centre has argued days back that same-sex marriages is just voicing "urban-elitist views" for social acceptance and the Supreme Court should not endorse it.
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