Same Sex Marriage Hearing: Plea Points Out To Victorian Morality And Indian Texts

The Supreme Court is hearing petitions to legalise the marriage of same-sex couples and alternative-sexuality couples for the second day. The centre, however, seems to be fiercely against it, referring to queer relationships as those "against the order of nature."

On behalf of one of the petitioners, senior advocate Mukula Rohatgi pointed out the need to "push society to acknowledge us as equals in all respects because the constitution says so."

However, the other side of the argument is that the union of a biological man and a biological woman leads to procreation, and that is the order of nature. "They are saying that I’m abnormal. What is abnormal is the majority, but that is not the case; that is a mindset. The important thing is deconstructing the heteronormative framework," said Rohatgi to the five-justice bench headed by Chief Justice DY Chandrachud.

Same Sex Marriage Hearing

"This Victorian morality issue came in the 1800s. If you go back to Indian texts, for hundreds of years, these (non-heterosexual sexual) acts were depicted on walls for thousands of years. Our morality was very different, far more advanced (and) not Victorian... stereotyped, stigmatised!"

Advocate Rohatgi referred to the cave paintings of Khajuraho and said, "Popular morality cannot defer the decisions of this court for the legislative process... Constitutional morality will become a habit when upheld by this court."

He mentioned that he is requesting a declaration of marriage and that when a same-sex couple walks into a public space knowing that the law and state recognise their union as marriage, it will help eradicate the social stigma. "I require beyond the badge that I am 'married'. I also want the positive and affirmative consequences of a valid marriage," he appealed.

He also mentioned yesterday that whenever the words "husband and wife" are used in the Special Marriage Act, they should be replaced with "person."

When Justice SK Kaul said that everything could not be changed at once, Rohatgi highlighted the "consequential effects," referring to the many socio-economic and legal benefits that are currently denied to same-sex couples, including the ability to open joint bank accounts, rent apartments, nominate for insurance, etc., that will follow the Supreme Court legalising same-sex marriages.

Rohatgi also empathises with the fact that social conventions are generated and influenced to a large extent by what the law says, even if society hasn't fully understood or accepted the change. He cited the example of the Hindu widows Right to Remarry Act, which came in the 1800s but society wasn’t ready for it until the 1900s. Sometimes the law takes the lead, like in this case, where the law acted with alacrity.

Suggested Reading: Looking At Petitions For Same-Sex Marriage That Have Been Filed At Supreme Court