The Centre on May 10 told the Supreme Court that seven States have either opposed legal recognition of same-sex marriage or said the issue required “intense and expansive debates”.
Appearing before a Constitution Bench led by Chief Justice of India D.Y. Chandrachud, Solicitor General Tushar Mehta, for the Centre, said Rajasthan had opposed the idea of giving legal status to same-sex marriage while Uttar Pradesh, Maharashtra, Andhra Pradesh, Assam, Manipur and Sikkim have said they cannot respond without the benefit of threadbare discussions on it across a large platform.
The Centre had written to all the States and Union Territories for their opinion on same-sex marriage. These seven had replied.
Even granting same-sex relationships a status “less than marriage” would turn out wrong, Mr. Mehta said.
“From what I could gather from Your Lordships’ observations that there is a possibility of a judicial declaration being made of granting something… a status less than marriage but something more than their [same sex couples] present status… That may not be the correct course of action,” Mr. Mehta submitted.
The Bench has in the previous hearings in the case talked about the reality of stable relationships among same-sex couples. It had mentioned the possibility of “civil unions”. The judges had at one point mulled that, if not marriage, a legal framework could be devised by which same sex couples could be recognised as “partners” in a “contract”. Finally, the court had pointedly said that long cohabitation would presume marriage.
Mr. Mehta said a judicial declaration by the Supreme Court was a “binding law” under Article 141 of the Constitution. A judgment by the Constitution Bench giving same sex marriage or something similar but lesser legal status would be a law binding on all in the country.
Ordinary people who refuse to comply with such a judgment in the name of their “faith” or “conscience” would run the danger of being hauled up for contempt though they had gone unrepresented in court.
A baker who does not bake the celebratory cake for a same sex union or a priest who refuses to officiate over such a ceremony may be hauled up for contempt of the Supreme Court’s judgment, Mr. Mehta explained.
The Solicitor General said the court, unlike the Parliament, would not be able to steer the fallout of its own judicial declaration.
“The fallout of a judicial declaration can be manifold and affect the various facets of life. The court will not be able to foresee, envisage or even comprehend the fallout,” Mr. Mehta said.
He said only the legislature would be able to bring in regulations and rules to contain the fallout.
Justice S. Ravindra Bhat, on the Bench, said a “declaration” may not always be in the form of “grant this or grant that”. It could also be limited to a constitutional court simply “recognising a state of affairs”.
Senior advocate A.M. Singhvi termed the government’s attempt a “tyranny of majoritarianism” and urged the court to not give in.
He said judges, unlike the legislature, should not be buffeted by the winds of majoritarian trends of the day. He said majoritarian notions turn out to be “tyrannical and dictatorial” at times.