SC notifies 5-judge bench to hear same-sex marriage pleas

Apr 16, 2023 12:04 AM IST

On March 13, the Supreme Court decided that a bunch of petitions demanding legal validation for same-sex marriages will be decided by a constitution bench.

NEW DELHI The Supreme Court on Saturday notified the constitution bench that will decide a batch of petitions demanding legal validation for same-sex marriages. The bench will comprise Chief Justice of India (CJI) Dhananjaya Y Chandrachud, and justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli.

The five-judge bench will commence the hearing on April 18 (AP)
The five-judge bench will commence the hearing on April 18 (AP)

According to the information updated on the Supreme Court website, the five-judge bench will commence the hearing on April 18.

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Also Read | Ahead of SC hearing, Indian Psychiatric Society supports same-sex marriage

On March 13, the top court decided that a bunch of petitions demanding legal validation for same-sex marriages will be decided by a constitution bench even as the Union government, while opposing the plea, said that the apex court now carries the “grave responsibility” of determining how society will be shaped in future.

A three-judge bench, led by the CJI, had on that day set down the matter for final arguments before a constitution bench from April 18 after noting that the petitions involve the interplay between constitutional rights and specific legislative enactments, including the Special Marriage Act, 1954.

Article 145(3) lays down that cases that involve a substantial question of law in a matter relating to the interpretation of the Constitution should be heard by at least five judges.

Also Read | ‘Assault on family system’: Jamiat moves plea in SC opposing same sex marriage

Representing the Centre, solicitor general (SG) Tushar Mehta on March 13 submitted that he has no objection to the matter being placed before a larger bench, but implored the court to give ample time to all those who want to argue the case, given the impact the judgment will have.

On March 12, the Centre had filed its affidavit in the case, arguing 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, and that the legislative policy in India recognises marriage as a bond only between a biological man and a biological woman.

Opposing the bunch of petitions filed by same-sex couples and right activists, the Centre asserted that it is “impermissible” for the top court to change the entire legislative policy of the country that is deeply embedded in religious and societal norms, which would also trigger an “irreconcilable violence” to a large number of statutes defining “husband” as a biological man and “wife” as a biological woman.

Also Read | Same-sex marriage pleas mark an urgent moment

During the proceedings on March 13, the SG told the bench that the State is not coming in the way of people’s right to same-sex relationships which has also been held to be lawful after the 2018 judgment in the Navtej Singh Johar case, but the right to love is completely different from a mechanism to give sanctity to a social relationship.

The Delhi high court in July 2009 decriminalised consensual homosexual acts in private by declaring as unconstitutional a part of Section 377 of the Indian Penal Code that criminalises unnatural sex. However, in December 2013, the Supreme Court set aside the HC verdict, holding it was for the legislature to take a call on the controversial provision.

The year 2017, however, proved to be a game-changer when a nine-judge bench not only declared privacy to be a fundamental right but also adversely commented on the 2013 judgment that affirmed the validity of Section 377. The privacy judgement stressed that the right to privacy and the protection of sexual orientation lie at the core of a bundle of fundamental rights guaranteed by the Constitution. A year later, a five-judge bench decriminalised gay sex between consenting adults, as it borrowed from the privacy ruling.

Also Read | Same-sex pleas mark a key shift

According to global think tank Council of Foreign Relations, same-sex marriages are legal in at least 30 countries, including the US, Australia, Canada and France. Taiwan is the only state in Asia to legalise same-sex marriage.

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