19 Apr 2023

Centre has no data to describe same-sex marriage as urban elitist concept: Supreme Court

New Delhi: The Supreme Court on Wednesday rejected the Centre's plea that same-sex marriage is an urban elite concept.

Chief Justice D.Y. Chandrachud, and Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli's constitution bench rejected this argument of the central government during the hearing on the petitions demanding recognition of same-sex marriage.

Rejecting the argument, the top court said the central government did not have any data to support the argument.

Any government cannot discriminate: SC

The bench held that the any government cannot discriminate against a person on the basis of a characteristic over which the person has no control.

Justice Chandrachud, chairing a constitution bench, said, “When you see that these are innate characteristics, it counters the urban elite concept… Urban probably because more people are coming out in the open. The government also has no data to show that same-sex marriage is an urban elitist concept.”

The Chief Justice said, "What is innate may not have class bias, it may be more urban in its manifestations as more people are coming out in urban areas."

Senior advocate Abhishek M Singhvi, appearing for the petitioners, told the bench that this is the gist of it.

A person's sexual orientation is internal: Singhvi

Singhvi said that a person's sexual orientation is internal, it is linked to personality and identity. A classification, which discriminates against persons on the basis of their innate nature, would be violative of their fundamental rights and cannot stand the test of constitutional morality.

Singhvi said that every statement in the counter affidavit of the Center is without any survey, assessment or test. Marital status is a gateway to other legal and civil benefits such as tax benefits, inheritance and adoption, he added.

The Center had filed an affidavit saying that the demand for recognition of same-sex marriage is only an "urban elitist idea for the purpose of social acceptance".

The central government had said that recognizing the right to same-sex marriage would mean a virtual judicial rewrite of an entire branch of law.

The Center also submitted before the court that the petitions, which reflect the views of only the urban elite, cannot be compared with the appropriate legislature, which reflects the views of a wider spectrum and is spread across the country.

Centre raised questions on merit of hearing petitions

The Constitution Bench started hearing in this matter on Tuesday. On the first day, the central government raised questions on the merit of hearing the petitions and said that it should be considered first. 

The Center on Wednesday stressed the need for consultation with states, saying any decision on the issue of legal validity for same-sex marriage without taking states and union territories a party to the matter and taking their opinion is incomplete and weak. 

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