New Delhi: The Supreme Court's five-judge constitution bench asked the petitioners seeking recognition of same sex marriage how far can the court get in laying down the framework for same sex couples as various laws differentiate between woman and man or talk about their union and accordingly has different provisions for both.
"You are right in asserting that marriage is a bouquet of rights, it doesn't stop at gratuity, pension...the most important is entitlement to spouse on death...if we declare under the SMA (Special Marriage Act) that substitute the words man....can we stop at that today and say that we will go this far and no further? What if two Hindu men or women marry? Then can the court say that we won't get into it because of the Hindu succession act...there is different succession when a man or woman dies....so as long as you are dealing with broader issues, that is conceptually easy terrain for the court to pass, but when you cross the terrain there is no stopping," said CJI DY Chandrachud leading the constitution bench.
"Declaration is the first step.. the second step would be some would be some illustration that we have provided...then the rest will follow," said senior advocate Maneka Guruswamy for one of the petitioners. "Just to play a spoiler...how many times do we play the role of follow-up?....how many more litigations we are going to face? So, ultimately the question is, is this our job?," said J Ravindra Bhat in reference to the power of Parliament and judiciary in laying down law.
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Justice SK Kaul said that beyond ruling on the status of marriage if nitty gritties are looked into, it becomes a "complicated exercise".
"It can not be like all or nothing...first step has to be taken and then other would follow...in 1950 constitution guaranteed sex equality, but are we not coming to the court today facing discrimination...that's the process," said senior advocate Saurabh Kripal appearing for one of the petitioners. "There is a legal and constitutional journey, there is no question," said advocate Maneka Guruswamy.
Advocate Kripal said that there is no greater constitutional anathema than the government saying that because it's difficult to get into nitty gritties, we can't give them rights. He questioned if the court can leave the people at the mercy of Parliament which hasn't enacted the law for same-sex couple in the last 75 years. Senior advocate Maneka Guruswamy argued that the LGBTQ community will also come under the basic structure doctrine, they also have a fundamental right under Article 32 and they are not asking for anything special today. She said that counsel after counsel, including herself have presented the workability of laws, expanding their definitions and reading them in a tenable form.
She argued that LGBTQ people are not distinct, that devoid of the basic structure that they won't be read under Keswanand, basic structure.
"We also belong to this country, we also have article 32 and Parliament has to have us under its gambit," said Maneka Guruswamy. She said that there are certain rights, which are not for the whims and fancies of the legislature.
Kripal argued that it's a very common norm for a gay man to marry a woman and hide his identity and the government has nothing against that. He said that nothing is more detrimental to marriage than a gay man marrying a woman and then probably cheating on her. He asked the court to analyse the impact that people of the LGBTQ community bear for not getting married. He questioned on how the rights of heterosexual getting affected by the marriage of a homosexual.
The five-judge constitution bench started hearing a batch of petitions seeking recognition of same sex marriage last week. The bench comprises CJI DY Chandrachud, Justice PS Narasimha, Justice Ravindra Bhat, Justice SK Kaul and Justice Hima Kohli. While Justice SK Kaul and Justice Ravindra Bhat have tested positive for Covid, hence, they could not sit on Monday. But today they joined the bench for hearing through video conferencing. The hearing will resume on Wednesday, the petitioners will get 45 minutes to conclude their arguments and thereafter the government will present its stand.
