5-judge Supreme Court Bench to hear same-sex marriage pleas

Satya Prakash

New Delhi, March 13

The Supreme Court on Monday referred petitions seeking validation of same-sex marriage to a five-judge Constitution Bench, saying it’s a matter of “seminal” importance.

“We are of the considered view that issues here are resolved by five judges under Article 145(3) of the Constitution. We direct the hearing of this case to be posted before a Constitution Bench,” a Bench led by CJI DY Chandrachud said. The Bench, which also included Justice PS Narasimha and Justice JB Pardiwala, posted the matter for further hearing on April 18.

It’s policy matter

Govt not interfering in personal life of anybody. When it comes to an issue related to the institution of marriage, it is a matter of policy. —Kiren Rijiju, Law Minister

The Centre has said same-sex marriage is not in conformity with societal morality and Indian ethos, and will cause a “complete havoc” with the delicate balance of personal laws.

Despite the decriminalisation of Section 377 of the IPC, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country, it said in an affidavit. However, the affidavit stated that though the Centre limited its recognition to heterosexual relationships, there might be other forms of marriages or unions or personal understandings of relationships between individuals in society and these “are not unlawful”.

On behalf of the Centre, Solicitor General Tushar Mehta opposed the petitions, saying it should be left to Parliament to take a call on the contentious issue. He requested the top court not to cut-short submissions to be made by lawyers as the verdict will affect society as a whole. “Please have the entire conspectus before us… because your Lordships are shouldering a very heavy responsibility of how society would develop henceforth,” Mehta said.

Highlighting that marriage was not just a contract under the Hindu law, unlike the Mohammedan law, Mehta said, “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.”

The moment the marriage as a recognised institution between two persons of the same-sex is accepted, the question of adoption comes, he said. “Parliament will have to examine because Parliament will reflect the will of the people. Parliament will have to examine what could be the position of the psychology of a child who has seen either two men as parents or two women as parents…,” he said.

On behalf of some of the petitioners, senior advocate Neeraj Kishan Kaul said either the Special Marriage Act could be harmoniously construed to recognise same-sex marriage or the court could rely on the Navtej Singh Johar verdict to recognise it.