Same Sex Marriage | Will Not Deal With Marriage Equality In Personal Laws Now: Supreme Court

The ongoing legal proceedings pertaining to the petitions seeking legal recognition for same-sex marriage in India have left the entire nation in a state of anticipation. Today was the first day of the hearing before a Constitution bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. The day saw arguments ranging from equality of the laws, privacy and dignity of the members of the LGBTQIA++ community, and the rights concurrent to marriage equality, among others. However, what was of pertinence was the ambit or canvas of arguments which the Court decided to hear in the upcoming days. At the very outset, upon questions being raised by the Solicitor General of India Tushar Mehta, who was appearing for the Central Government, on the maintainability of the petitions, the court clarified that for now, it would be limiting itself to the ambit of the Special Marriage Act and would steer clear of personal laws. Centre Questions Maintainability of Petitions, Seeks to Implead StatesBefore delving deeper into the bench's discussion on whether it would deal with marriage equality in personal laws or not, it is important to take note of SG Tushar Mehta's arguments on maintainability. SG Mehta argued that the subject the court was dealing with was "creation of a socio-legal relationship of marriage" and the same was the domain of the competent legislature. He added that if the court still decides to hear the matter, it should implead all States as parties in the matter. He said–"When the subject is in the concurrent list, we cannot rule out the possibility of one state agreeing to it and another state being against it. In case of states not being joined, the petitions wouldn't be maintainable. The debate which is to happen to conferring or creation of socio-legal institution - should that be the forum of this court or parliament?"The court was not inclined to quash the petitions on the ground of maintainability with CJI DY Chandrachud interjecting the SG and stating that the nature of the SG's preliminary objection depended upon the canvas the petitioners opened up. He said–"Once we have a picture on what is the canvas they're arguing on, we may tell them what is the canvas we want them to argue on."Per contra, Senior Advocate Mukul Rohatgi contended that the SG's submissions did not hinge the maintainability of the petitions under Article 32. He added–"I have a right to approach this court. I have a right to be heard. My grievance may be right or wrong, your lordships will decide upon that but we are persons who are of the same sex. We have, according to us, the same rights under the Constitution as the heterosexual group of the society. Your lordships have held that. The only stumbling block on our equal rights was 377. That is now gone. Criminality is now gone. The unnatural part or order of nature is gone from our statute. So therefore our rights are equal."He also added that the right to approach the Supreme Court under Article 32 was itself a fundamental right. Post broad submissions by Senior Advocate Mukul Rohatgi, the bench noted that it had understood the canvas of the matter and had decided that it could steer clear of personal laws. CJI DY Chandrachud orally remarked–"Now that we've understood broadly the canvas of the matter, we can at this stage, steer clear of personal law. It may not be necessary for the court to then get into personal law."Can we deal with questions pertaining to Special Marriage Act now and leave personal laws for a better time? Asks Supreme CourtSenior Advocate Menaka Guruswamy, representing a petitioner who had sought an expansive reading of the Hindu Marriage Act to include queer marriages within its ambit stated–"The Hindu Marriage Act is not an issue necessarily of personal law. It is a statutory law. We will demonstrate that. The origin of the Hindu Marriage Act, the Hindu code, did something that was not permitted in sacramental Hindu Law, which is, inter caste marriages, Sagothra marriages, inheritance..."However, the bench did not seem eager to entertain arguments on marriage equality in Hindu Marriage Act at this juncture. CJI DY Chandrachud orally remarked–"There may be some amount of sage wisdom in also going about our tasks in incremental manner. Because otherwise do we then confine ourselves only to Hindu Marriage Act? What about the Parsis, Jews, Muslims- there are a lot of communities. The Constitution itself and the law itself is evolving so the court has to be mindful that we're moving by process of interpretation. Perhaps, going incrementally, cover a canvas for the present, confine yourself to this canvas, and then allow parliament's perception to evolve with time. Because parliament is also responding to the evolution of society. We can't deny the fact that there is undoubtedly the legislative element also involved."Justice SK Kaul supported the opinion of the Chief Justice and...

Same Sex Marriage | Will Not Deal With Marriage Equality In Personal Laws Now: Supreme Court

Padmakshi Sharma

Supreme Court Expresses Disinclination Towards Dealing With Marriage Equality In Personal Laws For Now

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