NEW DELHI: A five-member Constitution bench of the Supreme Court on Tuesday said it would not go into personal laws governing marriage while deciding pleas seeking legal recognition of same-sex union and instead examine it from the prism of the Special Marriage Act. Chief Justice of India D Y Chandrachud observed that there was no absolute concept of a man or a woman.
“It’s not the question of what your genitals are. It’s far more complex and even when Special Marriage Act says man and woman, the notion of a man and a woman is not an absolute based on genitals,” he said. The court brushed aside the Centre’s request to decide on the maintainability of the pleas first, saying the government should not tell the judges how to conduct the proceedings.
Solicitor General Tushar Mehta, in his opening remarks, said the issue of creation of a social-legal relationship of marriage could not be debated by just five individuals on that side, five on this side, five brilliant minds on the bench for the entire nation, as the matter was sensitive in nature. Pointing out that marriage is a legislative function and that it is on the concurrent list, Mehta said all parties need to be heard. Claiming that only a biological man and woman can enter into a valid wedlock, he said, acceptance of societal relationships is never dependent on judgments or legislations. It comes only from within.
“Even in the Special Marriage Act, the legislative int ent throughout has been of a relationship between a biological male and a biological female,” he argued. The CJI rebutted, “I’m sorry Mr Solicitor, we are in charge. Don’t tell us how to conduct court proceedings,” adding and the nature and tenability of the preliminary objection will depend on the canvas the petitioners open up. He said an incremental approach to the process of judicial determination in the case would reflect sage wisdom.
The court, he said, will play a dialogical role to create consensus and move towards a more equal future. “We’re conscious of our limitations. We can always confine our canvas,” the CJI said. He also pointed out that after the SC decriminalised unnatural sex, the verdict found greater acceptance. “We find there is greater acceptance in our universities...
There is an acceptance which is evolving.” Terming the state’s submission that people belonging to LGBTQIA+ are not equal to the heterosexual group as astounding, senior advocate Mukul Rohatgi said their social stigma can be removed only after they get the legal right to marry.
No piecemeal approach please: Sibal
Senior advocate Kapil Sibal, appearing for Jamiat-Ulama-i-Hind, said the court should either hear the issue in its entirety or not at all. A piecemeal approach will cause more harm than good to the group seeking legal validation for same-sex marriages, he pointed out