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NEW DELHI: In a clash of notions on male and female between a five-judge bench of the Supreme Court and the Union government, Chief Justice D Y Chandrachud on Tuesday said there was no absolute concept of man or woman and the postulation was far more complex than categorising a person according to the born-with genitals.
This drew a sharp response from solicitor general Tushar Mehta, who said such a fluid concept of man or woman would render several laws unworkable, which differentiate a biological man from a biological woman.
The exchange of words happened after the five-judge bench of the CJI and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha narrowed down the adjudication arena to legalisation of same-sex marriage under the Special Marriage Act, 1954, a secular legislation, and said it would not touch personal laws.
The SG said, “Whether the SC confines the remit to Special Marriage Act or not, tomorrow an LGBTQ member who wants to remain a Hindu would seek the right to marry under Hindu Marriage Act. That is why the Centre is saying that since marriage is a socio-legal institution with rule-making power given to states, all states should be heard on the preliminary issue – whether the court is the right forum to decide it?
“Even in SM Act, the legislative intent has throughout been on a relationship between a biological male and a biological female.”
The CJI said, “It is a very important value judgment you are making. You are saying that the very notion of a biological man or a biological woman is absolute.”
The SG replied, “Biological man means a biological man. It is not a notion.” The CJI said, “It is a notion. There is no absolute concept of a man or absolute concept of a woman at all. Biological definition is not what your genitals are. It’s far more complex, that is the point. Even when the SM Act says man or a woman, the very notion of a man or woman is not absolute based on what genitals you have.”
The SG said, “Biological man means what genitals he has.” When Justice Kaul said “that is a point of view,” Mehta said, “For men, irrespective of other attributes than genitals, there is a separate age limit for marriage prescribed. The SC has to examine whether marriage is a fundamental right, that is to marry without law. If the notion of a man and woman is taken as yardstick, then the SC would render several laws unworkable. If one has the biological genitals of a man but feels like a woman, then how would that person be treated under Criminal Procedure Code? As a woman, can the person be called for recording of a statement before police after a particular hour of the day? Several issues are to be gone into. It is better that Parliament debates on this.”
Justice Kaul said, “If we are not touching personal law, why should states be heard? We are confining it to SM Act and whether we can read it as a person instead of man and woman. They may have opened a wide chapter, we do not want to open the wide chapter. We can’t be compelled to hear everyone.”
The CJI said, “We are trying to steer a middle course.” When the SG said the present case would open a window for others to come to court on recognition of same-sex marriage in personal laws, which should be left to Parliament, the CJI said, “Windows will willy nilly open. Society is not dependent on anything.”
This drew a sharp response from solicitor general Tushar Mehta, who said such a fluid concept of man or woman would render several laws unworkable, which differentiate a biological man from a biological woman.
The exchange of words happened after the five-judge bench of the CJI and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha narrowed down the adjudication arena to legalisation of same-sex marriage under the Special Marriage Act, 1954, a secular legislation, and said it would not touch personal laws.
The SG said, “Whether the SC confines the remit to Special Marriage Act or not, tomorrow an LGBTQ member who wants to remain a Hindu would seek the right to marry under Hindu Marriage Act. That is why the Centre is saying that since marriage is a socio-legal institution with rule-making power given to states, all states should be heard on the preliminary issue – whether the court is the right forum to decide it?
“Even in SM Act, the legislative intent has throughout been on a relationship between a biological male and a biological female.”
The CJI said, “It is a very important value judgment you are making. You are saying that the very notion of a biological man or a biological woman is absolute.”
The SG replied, “Biological man means a biological man. It is not a notion.” The CJI said, “It is a notion. There is no absolute concept of a man or absolute concept of a woman at all. Biological definition is not what your genitals are. It’s far more complex, that is the point. Even when the SM Act says man or a woman, the very notion of a man or woman is not absolute based on what genitals you have.”
The SG said, “Biological man means what genitals he has.” When Justice Kaul said “that is a point of view,” Mehta said, “For men, irrespective of other attributes than genitals, there is a separate age limit for marriage prescribed. The SC has to examine whether marriage is a fundamental right, that is to marry without law. If the notion of a man and woman is taken as yardstick, then the SC would render several laws unworkable. If one has the biological genitals of a man but feels like a woman, then how would that person be treated under Criminal Procedure Code? As a woman, can the person be called for recording of a statement before police after a particular hour of the day? Several issues are to be gone into. It is better that Parliament debates on this.”
Justice Kaul said, “If we are not touching personal law, why should states be heard? We are confining it to SM Act and whether we can read it as a person instead of man and woman. They may have opened a wide chapter, we do not want to open the wide chapter. We can’t be compelled to hear everyone.”
The CJI said, “We are trying to steer a middle course.” When the SG said the present case would open a window for others to come to court on recognition of same-sex marriage in personal laws, which should be left to Parliament, the CJI said, “Windows will willy nilly open. Society is not dependent on anything.”
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