SC overrules govt objection, begins same sex hearing | Latest News India - Hindustan Times
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SC overrules govt objection, begins same sex hearing

By, New Delhi
Apr 18, 2023 11:52 PM IST

India's Supreme Court has begun hearing a number of petitions calling for legal recognition of same-sex marriages, despite objections from the government. The court clarified that the proceedings will focus on validating such unions under the Special Marriage Act only, and not under personal laws. If successful, India would become only the third country in Asia to allow same-sex unions, five years after the court decriminalised homosexuality. Around 50 petitioners have argued that denying them the right to wed is unconstitutional and violates their fundamental rights.

Overruling the Union government’s objections against judicial determination of the issue, the Supreme Court on Tuesday commenced its hearing on a bunch of petitions demanding legal recognition for same-sex marriages even as it clarified that the remit of the proceedings will confine to the validation of such unions only under the Special Marriage Act (SMA).

Around 50 petitioners have approached the top court asking for legalisation of same-sex marriage (PTI)
Around 50 petitioners have approached the top court asking for legalisation of same-sex marriage (PTI)

While the Centre maintained that it is exclusively for the legislature to grant legal recognition to a social institution and that the court must first seek the views of all states, a Constitution bench headed by Chief Justice of India Dhananjaya Y Chandrachud said that it will adjudge the issue in a “restricted arena” of granting validation to same-sex marriages by reading down or interpreting relevant provisions of the SMA. The bench also included justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.

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Solicitor general Tushar Mehta insisted that the court consider the Centre’s objections first but was turned down.

“I am sorry Mr Solicitor, we are in charge,” the CJI told Mehta, who was appearing for the Centre. “You cannot dictate how we will conduct the proceedings. I have never allowed this in my court.”

Around 50 petitioners have approached the top court asking for legalisation of same-sex marriage, arguing that denying them the right to wed was unconstitutional and violative of their fundamental rights. If they succeed, India will become only the third country in Asia to allow same-sex unions, a mere five years after the court decriminalised homosexuality.

Through an application filed on Sunday, the Centre urged the court not to interfere with the legislative policy that consciously outlaws same-sex marriages while seeking dismissal of all the petitions on the ground of maintainability. The Centre’s application follows a detailed counter affidavit filed in March when it said that legal validation of same-sex marital unions will cause “complete havoc” with the delicate balance of personal laws in the country and in accepted societal values.

But the Constitution bench on Tuesday agreed to examine petitioners’ submissions that rendering a gender-neutral definition of spouses instead of using “man” and “woman” under the SMA is good enough for according legal recognition to same-sex marriages, clarifying it would steer clear of recognition of same-sex marriages under personal laws, and added that an “incremental” manner of approaching this matter will entail “sage wisdom”.

“We cannot deny the fact that there is undoubtedly a legislative element involved in this matter. We don’t have to decide everything to decide something in this case...you can confine yourself to this course and can allow society to evolve, Parliament’s perception to evolve because Parliament has also been responding to the evolution of society,” the bench told the petitioners, led by senior advocate Mukul Rohatgi.

Senior counsel Abhishek Manu Singhvi, KV Viswanathan, Geeta Luthra and Menaka Guruswamy also appeared for different petitioners in the case.

According to the bench, which included justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and Ravindra Bhat, “incremental changes in issues of societal ramifications are better” and that “judicial wisdom” required the court not to delve into a spectrum of issues emanating from personal laws and customs.

The bench was appreciative of the fact that society has evolved in the last five years after its judgment in the 2018 Navtej Johar Case that decriminalised consensual gay sex between adults.

“Between Navtej (2018 judgment) and today, our society has found much greater acceptance of same-sex relationships and this is something very positive. In this evolving consensus, the court is also playing a dialogical role to create that consensus. We have to move towards a more equal future but at the same time, we have to be conscious of our own limitations,” it told the petitioners.

The court pointed out that the moment it touched upon any aspect of even a statutory law such as the Hindu Marriage Act, questions will arise why it should not examine similar and other aspects of marriages among Muslims, Christians, Parsis or Sikhs.

While the lawyers for the petitioners accepted the court’s suggestion, Mehta resisted the course suggested by the bench. He insisted that the bench ought to first examine Centre’s preliminary objections as to whether conferment of a social legal status be done by judicial adjudication and that too, without hearing all the states that also have power to make rules on marital laws.

“Can by a judicial adjudication process, this court create an institution of marriage? This necessarily will affect personal laws...there is no legal lacuna in this matter,” he said.

The bench told Mehta that it had already made it clear that the bench will not go into issues of personal law but will adjudicate the matter in a “much-restricted arena” of recognition under the SMA.

To this, the SG referred to the 2019 Transgender Persons (Protection of Rights) Act, contending that the law guarantees full protection not only to transgender people but all members of the lesbian, gay, bisexual, transgender, queer, intersex and asexual communities and therefore, there is no element of discrimination.

At the same time, Mehta added that the court should not hear the matter at all since the issue of recognition of a social relationship is within the exclusive jurisdiction of the legislature which has consciously declared that a valid marriage can be entered into only by a biological man and a biological woman.

Unimpressed with SG’s proposition, the bench retorted: “There is a value judgment you are making. It entails a biological man and a biological woman, and this is wrong. There is no absolute concept of a man or a woman.It cannot only be about what your genitals are. It’s far more complex than that. The notion of a man and a woman cannot depend only on what your genitals are.”

But Mehta said that the operations of various legislation depend strictly on a person’s genitals. “ If I have genitals of a man but otherwise, I am a woman, as being suggested, how will I be treated under CrPC? As a woman? Can I be called for a statement like a man? There are several issues. I will show several acts which your lordships would unintentionally make non-workable,” he said.

As Mehta lamented that the present hearing would open windows for similar litigation in future on personal laws, the bench said that it cannot bind future generations or legislature from deciding their course of action. “Windows have already opened, and the question now is whether there is enough breeze or not...Windows are going to be willingly opened irrespective of what we decide,” it responded.

Mehta, in his opposition, was supported by senior advocate Rakesh Dwivedi, who appeared for the Madhya Pradesh government, and argued that the purpose of validating heterogeneous relationships is to perpetuate the human race and culture and that same-sex marriage cannot thus seek parity.

On his part, senior counsel Kapil Sibal, representing Jamiat Ulema-e-Hind, submitted that the court should either decide the whole gamut of issues, including personal laws, or not hear the matter at all since a constricted approach could create many complications in operation of other laws affecting a marriage.

The bench, however, proceeded to hear the matter, adding the petitioners will get time till Thursday to argue. At this point, Mehta asked the bench if the Centre’s application to decide preliminary objections to the maintainability of the petitions was being formally rejected. The bench, however, did not respond and opted to proceed with the matter.

Commencing the arguments on behalf of a same-sex couple, Rohatgi said that he was amazed at the Centre calling the same-sex marriage an “elitist concept” whereas for the community, it is a battle for equality, dignity and the right of respectability in society.

“Choice of an individual is not an “elitist concept”. It is innate. People are born with it...We cannot be discriminated against only because we are ten thousand and the others are ten crores. The majoritarian way cannot be the only concept and the State is duty bound to give us the same respect, equality and dignity. This is the core of my submission,” he added.

At this point, the bench observed that Rohatgi’s arguments seem to be that society could not be allowed to say that while it recognises same-sex relationships, such couples must remain deprived of the benefits and rights that conventional social groups have. The senior counsel, appearing with a group of lawyers from law firm Karanjawala & Co, agreed with the court, adding that inequality will continue if there was no corresponding duty cast on the State to grant them equal rights like the heterogeneous couples. “This argument cannot be raised that leave it to parliament because your lordships are the protectors of fundamental rights,” said the senior counsel.

The bench will continue hearing the case on Wednesday.

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