SC side-steps Centre’s push to leave same-sex marriage decision to Parliament

The SC dismissed the Centre’s argument that “five brilliant individuals” on the Bench could not make a decision for the nation on this issue, and that States’ views were needed as marriage is on the Concurrent List

Updated - April 19, 2023 07:27 am IST

Published - April 18, 2023 08:19 pm IST - NEW DELHI

Media personnel at Supreme Court during a hearing of a batch of petitions demanding legal validation for same-sex marriages, in New Delhi, on April 18, 2023.

Media personnel at Supreme Court during a hearing of a batch of petitions demanding legal validation for same-sex marriages, in New Delhi, on April 18, 2023. | Photo Credit: PTI

The court battle for legal recognition of same-sex marriage began on Tuesday with a brief but intense sparring session between the Supreme Court and the Centre, which saw Chief Justice of India D.Y. Chandrachud sharply remind the government that “we are in charge”.

The remark from the Chief Justice, who is heading a five-judge Bench, came in response to preliminary objections from the government, represented by Solicitor General Tushar Mehta, that “five brilliant individuals” could not decide for the entire nation and create a “new socio-legal relationship” within the institution of marriage.

SC ‘in charge’

Mr. Mehta said that the petitioners seeking legal recognition of same-sex marriage should first address the government’s preliminary objection that Parliament, and not the court, should consider and decide the issue.

“I am sorry, Mr. Solicitor General, we are in charge… Don’t tell us how to conduct our proceedings,” Chief Justice Chandrachud said, asking the petitioners to open their case and outline the canvas of their grievances.

‘States’ views needed’

The Solicitor General, however, pressed on, arguing that the petitions were not maintainable in the absence of including the States as parties to the case. “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… So let the Parliament consider and decide this issue,” Mr. Mehta submitted.

Mr. Mehta went on to say that he would have to take instructions on the government’s “further participation” in the case. Justice Sanjay Kishan Kaul then intervened to ask, “Are you saying you will not participate in the proceedings? It does not look nice when you say the government will not participate. It is a very serious issue.”

“I am just saying this is not an issue to be decided by five brilliant individuals [the Bench] on that side and five learned individuals [petitioners’ lawyers] on this side… We have to know what a farmer in South India wants or what a businessman in the North East wants…” Mr. Mehta said.

‘Can’t wait for Parliament’

Senior advocates Mukul Rohatgi and K.V. Vishwanathan, for the petitioners, said that their fundamental rights could not, and need not, wait for the Parliament to legislate. They made it clear that they do not want to touch upon the realm of personal laws, thus obviating the need to involve the States in the case. Mr. Rohatgi said that he was only seeking a broader interpretation of the Special Marriage Act to include same-sex marriages.

In its preliminary objections, the government had claimed that the idea of same-sex marriage was merely an “urban elitist view”.

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