Will not go into personal laws, says SC while hearing pleas for same-sex marriages

The Supreme 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 day's proceedings on the sensitive issue started with the Centre's vehement submission that its "preliminary objection" be heard and decided first that the court cannot go into the question which essentially is on Parliament's turf.

Irked over the submission, a five-judge constitution bench headed by Chief Justice DY Chandrachud said "We are in charge", and the nature and tenability of the preliminary objection will depend on the canvas the petitioners open up.

Terming the issue involved in the pleas as "complex", the bench asked the lawyers appearing in the matter to advance arguments on the Special Marriage Act, a religion-neutral statute.

The Special Marriage Act, 1954, is a law that provides a legal framework for the marriage of people belonging to different religions or castes. It governs a civil marriage, where the state sanctions the marriage rather than the religion.

Solicitor General Tushar Mehta, appearing for the Centre, referred to the ramifications for various personal laws if the top court were to validate same-sex marriages and gave illustrations from the Special Marriage Act saying even it has terms like "man and woman".

The bench said it is not the question of "genitals", and the very notion of the special law having "man and woman" is not restricted to the genitals.

"It is not the question of what your genitals are. It is far more complex, that's the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals," said the bench, which also comprised justices Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha.

At the outset, Mehta raised the issue of preliminary objection and said the subject that the apex court is dealing with is virtually the creation of a socio-legal relationship of marriage, which would be the domain of the competent legislature.

He said when the subject is in the concurrent list, the petitions would not be maintainable in the absence of the states as parties to the matter being adjudicated.

The bench observed it first wants to have a view of the canvas, which the petitioners' side would open up.

On being pointed out the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if the top court were to hold same-sex marriages valid, the bench said, "Then we can keep the personal laws out of the equation, and all of you (lawyers) can address us on the Special Marriage Act (a religion-neutral marriage law)."

Mehta referred to the laws on transgenders and said, there are several rights such as the right to choose partners, privacy rights, right to choose sexual orientation, and any discrimination is criminally prosecutable.

"However, the conferment of the socio-legal status of marriage cannot be done through judicial decisions. It cannot even be done by the legislature. The acceptance has to come from within the society," the law officer said.

Insisting that the preliminary objection should be heard first, Mehta said the petitioners' side can advance their submissions on what they want and also an overview confined to the preliminary objection raised by him.

"I am sorry Mr Solicitor, we are in charge," the CJI told Mehta, adding, the court will hear the petitioners' side first. "You cannot dictate how we will conduct the proceedings. I have never allowed this in my court," the CJI said.

Mehta responded, he never dictated things to the court.

"This is a matter, too sensitive an issue, where your lordships would examine the preliminary submission and then give me some time. We may have to consider what would be the stand of the government on further participation in this debate," he said.

"Trust us to have a broader perspective," the CJI told the government's law officer.

Mehta said there is no question of a lack of trust.

When the bench said it intended to understand what the petitioners' side wants to argue, the SG pleaded for time to consider to what extent the government would like to participate in this.

"Are you saying you do not want to participate?" Justice Kaul asked Mehta who responded, saying "I will not go that far." "It does not look nice when you say we will see whether we will participate," Justice Kaul told the Centre's counsel.

Mehta told the court he never said the government will not participate in the proceedings and that his submission was on the question of which forum should debate this issue.

During the arguments, Mehta said the problem will arise when a person, who is a Hindu, wants to avail the right to marry within the same sex while remaining a Hindu.

"Hindus and Muslims and other communities will be affected and that is why the states should be heard," he said.

"We are not going into the personal laws and now you want us to get into it. Why? How can you ask us to decide it? We cannot be compelled to hear everything," the bench said.

Then this will amount to "short circuiting" the issue and the Centre's stand is not to hear it all, Mehta said, to which the CJI responded: "We are taking a middle course. We don’t have to decide everything to decide something." The bench said though 10 petitioners wanted it to be dealt with on a broader aspect "we are restricting it and we are not going into personal laws etc".

The law officer contended the bench was saying it will not go into the personal laws but the earlier judgments opened this window and so again this (the current proceedings) will open another window later.

"But we cannot bind our future generations long after we are gone and turned to dust," the bench observed.

Senior advocate Kapil Sibal, appearing for Jamiat-Ulama-i-Hind, said the court should either hear the issue in its entirety or not hear it at all as a piecemeal approach will cause more harm than good to the group seeking legal validation for same-sex marriages.

"I am a firm believer of the autonomy of an individual...we need to celebrate the union of two people.... now, if marriage is allowed and it breaks, then the question will be who will take care of the child. Who will be the father... who will be the mother...," he said.

Senior advocate Mukul Rohatgi, appearing for one of the petitioners, said if rights have to be identical "then I must get the recognition of my union the same way as the recognition of the union of two other heterosexuals".

"And since it is based on an implementation of my fundamental rights, I can come to the court and the court need not wait for the legislature. There may not be a mandamus to the legislature. Legislature can or cannot do," he said, adding "If this court has said something, the State has to respect it and once State respects it, the stigma will go." Rohagti underlined that law cannot remain static and changes with time.

"For time being can we not step into personal laws at all and restrict to Special Marriage Act by giving it a gender-neutral interpretation and evolving a civil union concept. From the Navtej Johar (decriminalisation of consensual gay sex) judgement till now there has been an acceptance of same-sex relationships in universities ...and in this evolving consensus, the court is playing a dialogical role and we know about our limitations," the bench said during the hearing which will continue on Wednesday.

The hearing and 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.