SC hearing on same-sex marriage: Centre questions judiciary role in creating socio-legal rights

Meanwhile, appearing on behalf of the petitioners, Senior Advocate Mukul Rohatgi argued that those in same sex relationships should also have equal rights similar to their heterosexual brethren. He said that since the criminality attached to Section 377, the provision which decriminalised homosexuality, has been struck down, the LGBTQI+ community should have a right to a life of dignity and to the institution of marriage and family which is available to others.

Clarifying that he won’t be going into the ambit of personal laws, Rohatgi said the fundamental rights of the LGBTQ are being restricted and thus, it is the courts duty to act.

The hearing comes a day after the Centre reiterated its opposition to the legal recognition of same-sex marriage, saying the “legislative understanding of marriage in the Indian statutory and personal law regime” refers to marriage between a biological man and a biological woman.

The court had referred the pleas to a Constitution Bench on March 13, saying questions of “seminal importance” were involved. A three-judge Bench headed by the CJI had said the submissions related to an interplay of constitutional rights and specific legislative enactments including the Special Marriage Act on the one hand, and the rights of transgender couples on the other.

The hearings were livestreamed “in public interest”.