A Constitution Bench of the Supreme Court hearing petitions seeking legal recognition of same sex marriages on April 25 questioned how far the court can adjudicate in issues in which Parliament is empowered to legislate.
The Bench said the powers of the Parliament cover almost all the areas raised in the petitions.
“It cannot be disputed that the Parliament has the power to interfere with the canvas covered by these petitions. Entry 5 of the Concurrent List covers marriage and divorce… The test really is how far can the courts go?” Chief Justice D.Y. Chandrachud, heading the Bench, asked the petitioners.
Senior advocate Menaka Guruswamy, for petitioners, said the court need not wait for the Parliament to legislate to fill up a vacuum. The provisions of the Special Marriage Act, insofar as they do not recognise same sex marriages, were unconstitutional. The court could act as the ‘north star’.
Senior advocate Saurabh Kirpal, also for the petitioners, said the battle for legal status for same sex marriage is not about “all or nothing”. The court should intervene and bring whatever relief it could do so, and pave the way for greater changes to evolve.
Mr. Kirpal said the legal recognition of same sex marriage would only fortify and expand the social institution of marriage. He said not allowing same sex marriage had the effect of promoting ‘lavender marriages’ which would cause misery all around.
He submitted that by not recognising the same sex marriage, the country was pushing competent homosexuals to migrate abroad, which would cost the nation economically.
Senior advocate Jayna Kothari, for trans-activist Akkai Padmashali, submitted on behalf of the transgender community. She said the right to marriage and family were recognised as part of the fundamental right to life and dignity under Article 21 of the Constitution.
Senior advocate Geeta Luthra referred to the Foreign Marriage Act, submitting that a same sex couple married abroad find that their relationship has no legal status in India. She said India, which is part of the comity of nations, should not lag behind when 12 out of the G20 countries, including the European Union, have permitted same sex marriages.
Senior advocate Anand Grover submitted that the right to “intimate association” could be read into Article 21 in addition to privacy, autonomy and dignity.