A five-judge Supreme Court constitution bench is scheduled to hear from Tuesday a batch of petitions seeking legal validation of same-sex marriages in the country.
A bench of Chief Justice D Y Chandrachud and justices S K Kaul, S Ravindra Bhat, P S Narasimha and Hima Kohli will commence the hearing on April 18 on the petitions which were referred to a larger bench for an authoritative pronouncement on March 13 by the CJI-led bench, saying it is “very seminal issue”.
The hearing and the consequential outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject.
The Centre has opposed the petitions seeking legal validation for same-sex marriages, claiming they will cause “complete havoc” with the delicate balance of personal laws and accepted societal values.
The government submitted that despite the decriminalisation of Section 377 of the IPC, which had criminalised consensual gay sex in private, the petitioners cannot claim a fundamental right to same-sex marriage to be recognised under the laws of the country.
“Marriage, as an institution in law, has many statutory and other consequences under various legislative enactments. Therefore, any formal recognition of such a human relationship cannot be regarded as just a privacy issue between two adults,” it said.
The Centre said the institution of marriage between two individuals of the same gender is neither recognised nor accepted in uncodified personal laws or codified statutory laws.
Jamiat Ulama-i Hind has also opposed the petitions saying they are an attack on the family system and in complete contravention of all personal laws.
Seeking intervention in the batch of petitions pending before the top court, the organisation also cited Hindu traditions, saying the aim of marriage among Hindus is not merely physical pleasure or procreation but spiritual advancement.
It is one of the 16 ‘sanskars’ in Hindus, the Jamiat said. “This concept of same-sex marriage goes to attack the family system rather than making a family through this process,” it said.
However, the Delhi Commission For Protection of Child Rights (DCPCR) supported the petition saying the Centre and state governments should take steps to create public awareness that same sex family units are “normal”.
It said multiple studies on same-sex parenting have demonstrated that same sex couples can be good parents.
Referring to examples of countries that have legalised same-sex marriages, the child rights body said at present more than 50 countries allow same-sex couples to legally adopt children.
While referring the pleas to the constitution bench, the court had said the submissions on the issue involve an interplay between constitutional rights on the one hand and special legislative enactments, including the Special Marriage Act, on the other.
“Having due regard to the broader context of the petitions before this court, the inter-relationship between the statutory regime and constitutional rights, we are of the considered view that it would be appropriate if the issues raised are resolved by a constitution bench of five-judges of this court…,” the bench had said while referring to Article 145 (3) of the Constitution and calling it a “very seminal issue”.
“We accordingly direct that the hearing of these petitions be placed before a constitution bench,” the apex court said while posting the pleas for hearing on April 18.
Article 145(3) of Constitution says there should be at least five judges to hear cases that involve a substantial question of law as to the interpretation of the Constitution, or any reference under article 143, which deals with the power of the President of India to consult the Supreme Court.
The court said in the batch of pleas, the petitioners have sought recognition of the rights of couple of the same gender to marry, and while relying upon the apex court verdicts on right to privacy and decriminalising section 377 of the Indian Penal Code, they have asserted broader constitutional entitlements arising out of right to life and personal liberty, right to dignity and others.
The bench had said one of the issues raised before it also relates to the rights of transgender couples to marry.
Solicitor General Tushar Mehta had told the bench that marriage is not just a contract in case of Hindu law which it is in the Mohammedan law.
“When the question of granting recognition, legal sanction to a relationship is concerned, that is essentially a function of the legislature and for more than one reason,” he said.
The apex court had, on January 6, clubbed and transferred to itself all such petitions pending before different high courts, including the Delhi High Court.
On December 14 last year, it had sought the Centre’s response to two pleas seeking a transfer of the petitions pending in the Delhi High Court for directions to recognise same-sex marriages to itself.
Prior to that, on November 25 last year, the apex court had sought the Centre’s response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.
A bench headed by CJI Chandrachud, who was also part of the Constitution bench that in 2018 decriminalised consensual gay sex, issued a notice to the Centre in November last year, besides seeking Attorney General R Venkataramani’s assistance in dealing with the pleas.
The top court’s five-judge Constitution bench, in a path-breaking unanimous verdict delivered on September 6, 2018, held that consensual sex among adult homosexuals or heterosexuals in private space is not a crime while striking down a part of the British-era penal law that criminalised it on the ground that it violated the constitutional right to equality and dignity.
