SC notice to Centre on pleas to recognise same-sex marriage

Four years after it decriminalised homosexuality between consenting adults affirming sexual autonomy as a basic right of individuals, the Supreme Court on Friday sought the Union government’s response on a clutch of petitions demanding legal recognition to same sex marriages under the Special Marriage Act (SMA), and requested attorney general R Venkataramani to assist in the matter.

A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, issued notice to the Centre asking for a reply within four weeks on the petitions which have also sought statutory recognition for the members of the LGTBQ+ community to marry the person of their choice.

Even as a bunch of cases on this issue remains pending before different high courts, the bench was persuaded to admit the matter in view of a statement made by the Centre recently before the Kerala high court that the ministry concerned was taking steps to get all similar cases transferred to the Supreme Court.

“Issue notice, returnable in four weeks. Notice shall also be issued to the learned Attorney General,” the bench, which also comprised justice Hima Kohli, said in its brief order.

According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

While issuing the notice, the court took note of the arguments made by petitioners’ lawyers, senior counsel Neeraj Kishan Kaul, Mukul Rohatgi and Maneka Guruswamy, that the issue needs an authoritative determination by the highest court of the land, which has guided the jurisprudence on the subject through its landmark judgments decriminalising homosexuality and granting privy a status of fundamental right.

The lawyers pointed out that incidentally, both the judgments had justice Chandrachud as one of the authors.

“These people have valuable constitutional rights. Various proceedings are at various stages before different high courts, prolonging their attainment of the rights so affirmatively highlighted by my lordship’s judgments in Navtej Singh Johar (decriminalising homosexuality) and Puttaswamy (privacy),” Kaul told the bench, as he opened the arguments on behalf of Supriyo Chakraborty and Abhay Dang. Chakraborty and Dang are two gay men living in Hyderabad, who have asserted in their petition that the right to marry a person of one’s choice should extend to LGBTQ+ citizens as well.

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