Concept of gender is complex, not restricted to genitals: CJI observes during same sex-marriage hearing

SC

The Chief Justice of India DY Chandrachud, on April 18, remarked that the concept of gender is complex and the definition of a biological man and a biological woman is not restricted to a person's genitals.

The court was hearing a batch of petitions seeking legal recognition of same-sex marriage in India.

The CJI's remark came as a response to Solicitor General (SG) Tushar Mehta's argument that the framers of the Special Marriage Act, 1954, contemplated marriage between a biological man and a biological woman. Through the course of the day, the SG insisted that the Centre's preliminary objections be heard before the court commences hearing the case at length.

When the hearing commenced, SG Mehta insisted that the court hear the Centre and the states on maintainability of the petitions. The Centre has contended that recognition of same sex marriage should be debated in parliament, rather than in court. SG Mehta said, "None of us know what a farmer in south India thinks or a businessman thinks in North India."

The CJI however, made it clear that the court can decide on the tenability of the Centre's arguments only after it hears a broad canvas of submissions by all the petitioners. The CJI said that the court will decide on this at a later stage. He said, "We need a picture in first 15 to 20 minutes. Let us hear petitioners first. We cannot pre-empt the submissions of petitioners."

However, the SG insisted that the parties seeking legal recognition of same-sex marriage must first respond to his arguments on maintainability of the petitions.  A visibly miffed CJI said, "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."

SG Mehta then sought for time to decide whether or not the government will participate in the proceedings. Justice Sanjay Kishan Kaul, who is a part of the constitution bench, intervened and said that it does not reflect well on the government if they do not participate in such an important issue.

The SG eventually argued for a while before the bench proceeded to let the petitioners present their case.

Senior advocate and former attorney general Mukul Rohatgi argued that India has already recognised the rights of the members of the LGBTQ+ community. Further, the only impediment which was left, i.e., criminalisation of Section 377 of the Indian Penal Code, 1860 has also been struck down.

Rohatgi thus, asked the SC to provide positive rights by granting a declaration of marriage equality rights to all people, including to same-sex couples. He argued that the Supreme Court is not expected to reinvent the wheel, and rather only provide an affirmative declaration of rights which are already in the constitution.

He urged that the Supreme Court is the conscience-keeper of the Constitution of India and it cannot be a defence for the State to contend that the Petitioners should await appropriate legislation by Parliament on the issue.

Rohatgi was assisted by senior counsels Saurabh Kripal, Menaka Guruswamy and advocate Arundhati Katju along with a team of advocates from Karanjawala & Co, including Tahira Karanjawala, Niharika Karanjawala, Sanya Dua and Shreyas Maheshwari.

The hearing of the case will now continue on April 19.