Centre has opposed pleas seeking legal validation
New Delhi: The Supreme Court on Monday referred the pleas seeking legal validation of same-sex marriages to a five-judge constitution bench for adjudication, saying it is a “very seminal issue”.
A bench headed by Chief Justice D.Y. Chandrachud said the submissions on the issue involve an interplay between constitutional rights on the one hand and special legislative enactments, including the Special Marriage Act, on the other.
The Centre has opposed in the top court a batch of petitions seeking legal validation of same-sex marriages, claiming they will cause a “complete havoc” with the delicate balance of personal laws and accepted societal values.
The bench, also comprising Justices P.S. Narasimha and J.B. Pardiwala, said this is a matter which is important enough to be decided by a constitution bench of five-judges.
“Having due regard to the broader context of the petitions before this court, the inter-relationship between the statutory regime and constitutional rights, we are of the considered view that it would be appropriate if the issues raised are resolved by a constitution bench of five-judges of this court…,” the bench said while referring to Article 145 (3) of the Constitution, while terming it a “very seminal issue”.
“We accordingly direct that the hearing of these petitions be placed before a constitution bench,” the apex court said while posting the pleas for hearing on April 18.
Article 145(3) of Indian Constitution says there should be at least five judges to hear cases that involve “a substantial question of law as to the interpretation” of the Constitution, or any reference under article 143, which deals with the power of the President of India to consult the Supreme Court of India.
Emphasising that the question of granting legal sanction to a relationship is essentially a function of the legislature, the Centre said the issue may have impact on status like the one for adoption if recognition is granted to same-sex marriage.
“The adopted child of a lesbian couple or of a gay couple does not have to be necessarily a lesbian or a gay,” the bench told Solicitor General Tushar Mehta, who was representing the Centre.
The court said in the batch of pleas, the petitioners have sought recognition of the rights of couple of the same gender to marry, and while relying upon the apex court verdicts on right to privacy and decriminalising Section 377 of the Indian Penal Code, they have asserted broader constitutional entitlements arising out of right to life and personal liberty, right to dignity and others.
The bench said one of the issues raised before it also relates to the rights of transgender couples to marry.
When one of the advocates urged the court that the proceedings in the matter be live-streamed, the bench said hearings before the constitution benches are already live-streamed.
Mehta told the bench that marriage is not just a contract in case of Hindu law which it is in the Mohammedan law.
“When the question of granting recognition, legal sanction to a relationship is concerned, that is essentially a function of the legislature and for more than one reason,” he said.
Giving an example, Mehta said the moment the marriage as a recognised institution between two persons of the same sex is accepted, the question of adoption comes.
“The parliament will have to examine because the parliament will reflect the will of the people. Parliament will have to examine what could be the position of the psychology of a child who has seen either two men as parents or two women as parents…,” he said.
The Solicitor General also urged the bench that arguments in the matter should not be cut short, as the judgment on it will affect the society as a whole.
“I will urge one thing. Please do not cut down arguments of any body. This is not just a matter between A and B. This is a judgment which will affect the society as a whole. Please do not cut down even their arguments also. Please have entire conspectus before us because your lordships are shouldering a very heavy responsibility of how the society would develop henceforth,” he said.