Same-Sex Marriage- Supreme Court Constitution Bench Hearing -DAY-5

SG Tushar Mehta: Mr Mukul Rohatgi said that so many decades ago, such concepts were not known. First, even if it were so, that is not any reason to rewrite. Second, there was debate about this so this was a conscious decision.

SG Tushar Mehta: Two people of different castes or religions, but one had to be a man and another had to be a woman. SMA was intended to be a union of heterosexual couple.

SG Tushar Mehta takes court through debates on Special Marriage Act on the floor of the House.

CJI DYChandrachud: SMA was intended to be religion-neutral, idea was to create a forum for people to marry outside their faith.

CJI: Of course we began by saying no mandamus. But, some countries have followed this model where they have given Parliament a timeline to come up with a law.

SG Mehta: That's right. Different constitutional ethos!

CJI: Look at Latvia, something very interesting happening there.

SG Tushar Mehta: Judgement followed by act.

CJI: Some countries have followed this doctrine where they have asked legislature to formulate a law.

Bench discusses Ghaidan v Godin-Mendoza (landmark UK gay rights judgement arising out of tenancy suit)

"Ghaidan also does not apply to Indian context. South Africa is only country where process initiated by judiciary."

SG Mehta: Like I said before, there is no prohibition here. What was struck down there was a prohibition on same sex marriage.

Discussion on how marriage equality was granted in various countries.

SG Mehta: In Taiwan, act was followed by executive action & judgement.

Bhat J: In Austria, act followed judgement.

SG: There was a prohibition under challenge.

SG Mehta: Whenever legislature does it, makes corresponding changes.

Bhat J: Even legislatures which have legislated on marriage equality, they have done in graded manner. In 9 cases, such changes been preceded by court direction.

SG Mehta: Wherever legislature has stepped in, they have correspondingly amended other statutes. But, note that none of the various statutes that would be affected have been challenged here. So court cannot do what Parliament can.