 "Same-sex marriage: We don't go by popular or segmental morality, says SC")
The Supreme Court said on Wednesday that it would not go by either “popular morality or segmental morality” but go with what the Constitution mandates, when an argument was advanced before it that young same-sex couples across the country wanted to get married.
Chief Justice of India (CJI) D Y Chandrachud said if, as a constitutional court, the apex court goes by what young gay couples feel, it will be subjected to volumes of data on what other people feel.
“Now, therefore, the great salutary safeguard of constitutional adjudication is that the court has to go by what the constitution mandates,” he said. “And therefore, we don't go by either popular morality or a segmental morality. We decide what the Constitution says," the CJI added.
When the matter was called out, Solicitor General Tushar Mehta, appearing for the Centre, told the apex court a committee headed by the cabinet secretary would be constituted to consider and examine the administrative steps which could be taken for addressing "genuine humane concerns" of same-sex couples without going into the issue of legalising their marriage.
After hearing this, the court requested the petitioners to submit a list of suggestions and suggested the counsels from both sides meet and discuss the issues.
In his written submissions, Mehta said: “It is submitted that the right to choose a ‘partner’ does not necessarily imply the right to ‘marry’ such person over and above the procedure established by law. It is submitted that marriage is a legal privilege conditional upon statutory or societal conditions.”
The Constitution Bench of the CJI, Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS. Narasimha continued with hearing submissions on behalf of the respondents in a batch of petitions seeking marriage equality rights for the LGBTQIA+(lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual) community.
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During the arguments on the seventh day of the hearing, Senior Advocate Saurabh Kirpal, appearing for the petitioners, said they have spoken to gay people at various seminars and 99 per cent of them said that the only thing they want is to get married.
Senior advocate Menaka Guruswamy, who is also appearing for the petitioners, told the Bench: “I don't say this as an elite lawyer. I say this having met these young people. Do not let them experience what we have experienced.”
Responding to her, the CJI observed: “Dr. Guruswamy, there is a problem with this line of argument. I will tell you why. We understand the feelings from which this argument comes. At the constitutional level, there is a serious problem.”
During the hearing, the CJI said the petitioners are seeking the right to marry and the court is also conscious of the fact that a mere declaration of a right to marry is not adequate in itself unless it is implemented by a statutory provision that recognises, regulates and confers entitlement to those married.
He said the court can ensure by acting as a facilitator that real progress is achieved today in terms of a wider societal acceptance of the right to cohabit together.
The Bench said if the petitioners get something out of this exercise, that will be a big positive for them.
Justice Kaul, in turn, pointed out to the petitioners that even if the court was inclined to give a status of marriage, there would be many changes required in administrative and legislative aspects. The Bench said it was explained that while the government is reluctant to give the status of marriage, it is not reluctant to sort out problems arising from gay companionship without elevating it to marriage. Therefore, the court suggested that an endeavour may be made to at least discuss the issues that may be handled administratively.
Mehta argued that the petitioners' side while giving their suggestions, should not give jurisprudential ideas and only refer to the factual problems that can be addressed administratively.
“There is no delegation of the judicial power of the court,” the Bench observed, apparently referring to the proposed committee that would consider the grievances of gay couples.
“That can never be. Your lordships' shoulders are the strongest,” Mehta responded.
The arguments will continue on May 9.