Same-sex marriage: ‘Will go by Constitution, not by what people want,' says SC as govt signals acceptance
3 min read . Updated: 03 May 2023, 05:32 PM IST
PremiumCJI Chandrachud said that the apex court has to go by the constitution and constitutional morality and not with what people want
While hearing the same-sex marriage case, Supreme Court on Wednesday affirmed that the court will go with the constitution and constitutional morality, and not with what people want. The apex court heard the matter for the seventh day and asked the parties to conclude the arguments during the next hearing on 9 May. The government has agreed to the formation of a panel under the chairmanship of the Cabinet Secretary to discuss the genuine human concerns of same-sex couples on marriage.
The move by the government is seen as a first step towards an amicable resolution of the disputes, and the lawyers for the petitioners also signaled openness to the idea. Solicitor General of India Tushar Mehta submitted in court that the government is positive on listening to the petitions and the committee will address the suggestions.
Right, to Cohabit:
Chief Justice of India DY Chandrachud said that the Solicitor General is accepting the idea that people have the right to cohabit and it is a social reality based on that there may be some incidents like the right to reside, bank account, PF, Insurance, etc.. so for you it is a step forward.
To which Solicitor General said, “Like two old man staying together... to support each other."
The petitioner's lawyer took objection to the analogy and said “This example missed the point itself. For something as a pension, insurance, etc. only accrues in a marriage not in the relationship of a caregiver.."
Justice Kaul entered the argument for some clarity and said, “This is without prejudice to everyone's rights.. if marriage right is given also there will be many changes in the legislative and administrative domain required.. Government is not reluctant to solve the problems arising of a gay companionship.. just not the label of marriage."
“We are happy to divide it and this will be a low hanging fruit and everyone will be happy.. but the higher fruit will be your order," petitioner's lawyer Abhishek Manu Singhvi said.
Concept requires legislative changes, beyond our domain: CJI Chandrachud
“The conceptual domain requires legislative changes and it is completely beyond our domain. So we have to see how we frame the conceptual doctrine. Some things can be done administratively, something can be changed by subordinate legislation, and the third is recognition of same-sex marriage. So we are saying we will decide this issue as a concept but the govt taking one step forward will be to recognize the cohabitation of same-sex couples which will be a big step," CJI Chandrachud said.
Will go with constitutional morality, not what people want: CJI Chandrachud
When the petitioner's lawyer Menaka Guruswamy submitted that a lot of same-sex couples, especially in small towns want to marry, CJI Chandrachud stressed not going in that territory.
“As a constitutional court, we have an issue... if we go by what young people feel as constitutional court then we have to go by what others feel.. that is why we have to go with what the constitution is and what is constitutional morality.. if we entertain this argument then other side will throw at us what the country wants and we cannot go into that.. this is a social institution which is evolving and court as a facilitator can ensure that there is some development.. if we don't recognize same-sex marriage we do not want you to be with nothing in your hand," CJI Chandrachud said.