SC urged to use plenary power, moral authority to ensure acceptance of same-sex marriages

The petitioners seeking legal validation of same-sex marriage on Wednesday urged the Supreme Court to use its plenary power, “prestige and moral authority”, to push the society to acknowledge such a union, which would ensure LGBTQIA persons lead a “dignified” life like heterosexuals.

A five-judge Constitution bench headed by Chief Justice DY Chandrachud was told by senior advocate Mukul Rohatgi, appearing for one of the petitioners, that “the State should come forward and provide recognition to same-sex marriage.” He referred to the law on widow re-marriage, and said the society did accept it then and the “law acted with alacrity” and the social acceptance followed.

“Here, this court needs to push the society to acknowledge the same-sex marriage. This court, besides the power under Article 142 (which provides SC the plenary power to pass any order necessary for doing complete justice) of the Constitution, has moral authority and it enjoys public confidence. We rely on the prestige and moral authority of this court to ensure that we get our right,” Rohagti told the bench which also comprised Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha.

He said, “the State should come forward and provide recognition to same-sex marriage... which will help us leading a dignified life like heterosexuals.” At the outset of second day’s proceedings, Solicitor General Tushar Mehta, appearing for the Centre, filed a fresh plea urging the top court that all the states and UTs be also made parties to the proceedings on the pleas.

In a fresh affidavit filed in the apex court, the Centre said it has issued a letter on April 18 to all the states inviting comments and views on the "seminal issue" raised in the pleas.

“It is, therefore, humbly requested that all states and Union Territories be made a party to the present proceedings and their respective stance be taken on record and in the alternative, allow the Union of India, to finish the consultative process with the states, obtains their views/apprehensions, compile the same and place it on record before this court, and only thereafter adjudicate on the present issue," the affidavit said.

"It is submitted that the Union of India has issued a letter dated April 18, 2023 to all states inviting comments and views on the seminal issue raised in the present batch of petition," it said.

Opposing the fresh plea of the government, Rohatgi said the pleas challenged the Central law, the Special Marriage Act, and just because the subject is there in the concurrent list of the Constitution, states, and UTs need not be issued the notices.

“You do not have to labour on this point,” the CJI said.

Coming back to the submissions, Rohatgi referred to the judgements, including the decriminalisation of consensual gay sex, and said “The court was revisiting something which has already been decided”.

“I am equal to heterosexual groups and it cannot be so that their sexual orientation is correct and all others are incorrect. I am saying let there be a positive affirmation...We should not be treated as lesser mortals and there will be full enjoyment of the right to life,” he said.

The hearing is continuing.

The top court on Tuesday made it clear that it will not go into personal laws governing marriages while deciding the pleas seeking legal validation for same-sex marriages and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not "an absolute based on genitals". The outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject.

The apex court had on November 25 last year 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.