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Same-sex marriage hearing | The case so far

Have written to States about same-sex marriage hearing: Centre tells Supreme Court

The Centre has said it has issued a letter on April 18 to all the States inviting comments and views on the "seminal issue" raised in the pleas

April 19, 2023 11:41 am | Updated April 20, 2023 07:31 am IST - New Delhi

Representational file image.

Representational file image. | Photo Credit: PTI

The Centre on April 19 informed the Supreme Court that it has written to the Chief Secretaries of States, informing them that the same-sex marriage case is being heard by the Supreme Court.

The move to inform the States is despite the Supreme Court having already made it clear on April 18 that it would not venture into the realm of personal laws of various religions. The court had decided to restrict itself to examining whether the ambit of the Special Marriage Act could be widened to accommodate same-sex marriages.

The petitioners had agreed with the court for the adjudication of the issue in an "incremental manner" and to confine the contours of their submissions to the 1954 Act. They had made it clear to the court that they do not want to touch upon the realm of personal laws, thus obviating the need to involve the States in the case.

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As of now, only two States, including Madhya Pradesh, have entered appearance. The case may take a longer turn if more and more States enter appearance.

On Tuesday, Mr. Mehta handed over to the Bench copies of the Centre's letters to the Chief Secretaries.

Chief Justice of India D.Y. Chandrachud, heading the five-judge Constitution Bench, without commenting any further, said it is "excellent" that the Centre has informed the States.

Senior advocate Mukul Rohatgi, for petitioners, however, chose to vocally protest the Centre's move.

He said the Centre's letter to the States was dated April 18. The Supreme Court had issued notice in the case five months ago.

"It is totally unnecessary to do this now," Mr. Rohatgi said.

Mr. Rohatgi said the petitioners have limited their petitions to a challenge of a central law, the Special Marriage Act of 1954. They have only sought from the court a broader interpretation of the 1954 Act to make it gender-neutral so that same sex partners could exercise their right to get married.

"It is absolutely wrong for the Centre to argue that just because the subject (marriage) is in the Concurrent List, all the States have to be heard," Mr. Rohatgi submitted.

"You need not labour on this, Mr. Rohatgi," the Chief Justice observed quietly while asking him to begin his submissions on the second day of the hearing.

The Centre, on April 18, had raised the preliminary objection that the States should be heard in the case. Mr. Mehta had said the creation of a "new socio-legal relationship" in the form of same-sex marriage by the apex court through a judicial declaration would only trigger chaos.

"Marriage is a subject in the Concurrent List of the Constitution. We cannot have one State opposing same sex marriage and another legislating in favour of it. Every State has separate rules under the Special Marriage Act or the Hindu Marriage Act. This calls for every State to be heard… I or any other person in this court may have a clear view of the issue, but those are not the views of the nation," Solicitor General Tushar Mehta, for the Centre, had argued vehemently on April 18.

Mr. Mehta had said a judicial declaration validating same sex marriage would render other laws, which clearly distinguish between man and woman, "unworkable".

Mr. Mehta had said the Parliament and not the court was the true forum to consider and decide on the issue of same sex marriage. He had submitted that “five brilliant individuals” cannot decide for the entire nation and create a “new socio-legal relationship”.

Senior advocate K.V. Vishwanathan, also for the petitioners, said their fundamental rights cannot, and need not, wait for the Parliament to legislate.

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