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The Centre on Wednesday urged the Supreme Court to consider leaving questions raised in the pleas seeking legal sanction for same sex marriages to Parliament, saying the court is dealing with a ”very complex” subject having a very ”profound social impact” and which would also require going into 160 provisions of different laws.
Asserting that revisiting these provisions would be a ”humongous exercise” even for Parliament and that the judiciary was not at all equipped and empowered to do so, the Centre vehemently reiterated its submissions and urged the five-judge Constitution bench headed by Chief Justice D Y Chandrachud to stop the exercise arising out of the pleas of LGBTQIA++ to grant them the right to marry.
Submitting that the real question is as to who would take a call on what constitutes marriage and between whom, Solicitor General Tushar Mehta, appearing for the Centre, told the bench there are several ramifications not only on the society but unintended ramifications on other statutes which would need a debate in the society, various state legislatures and civil society groups.
Contending that marriage is a socio-legal institution and its recognition squarely falls within the domain of legislative policy decisions, Mehta said the ”very heart” of the Special Marriage Act is the recognition of marriage between a conventional man and conventional woman.
During the hearing, the court observed it is a well settled principle that ”judges don't legislate” and asked the Centre not to cite in its support the controversial verdict of the US Supreme Court in the Dobbs case which had held there is no constitutional right to abortion.
It expressed strong reservation to the Centre making a reference to the verdict in support of the contention that judiciary should not venture into the domain of the legislature, saying the point is well taken but the case be not referred to as India has moved far beyond in recognising the rights of women.
Presenting his arguments, Mehta had referred to several judgments delivered by courts in India and abroad and said the judiciary can't indulge in usurpation of power to be exercised by the legislature.
Mehta further said despite marriage being the personal affair of two individuals, legislatures do intervene to decide various modalities such as age and grounds of divorce.
”Your lordships are dealing with a very, very complex subject having a very, very profound social impact. I would earnestly reiterate my request if your lordships can consider leaving all these questions to Parliament...,” the solicitor general told the bench, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, during the fifth day of hearing of the petitions.
Mehta said the court is dealing with LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) and there are 72 shades or variations and that ”is why we write +”.
Referring to the impact on several provisions of law, he said, ”Even if Parliament decides to re-visit these 160 provisions of various laws, then also it is going to be a humongous exercise.”
”I understand the difference between gender and sex, sexuality and gender etc. We are not going into it. But all laws, whether it is criminal law, civil law, any other law, law giving protection to women etc., they define man and woman in the conventional sense. When this question is being debated before your lordships for the first time, I am posing a question to myself, and based on that appealing to your lordships, should it not go first to the parliament or the state legislature,” Mehta argued.
He rebutted the vehement submissions of senior advocates Mukul Rohatgi and Saurabh Kirpal, who have argued for the petitioners' side, that the concept of homosexuality was not deliberated upon in Parliament at the time of framing of the Special Marriage Act in 1954 and hence the court can now read in certain provisions to grant marriage right to same-sex partners.
Mehta extensively referred to the parliamentary debates for legislating the Special Marriage Act and said the lawmakers were ”quite aware” of homosexuality and with a clear intent, had decided not to venture into it.
He questioned the submissions of those seeking validation of same sex marriages and referred to the minimum age prescribed for male and female to enter into a relationship of marriage.
”Can we read this into the law that a person has to complete 18 years and 21 years for marrying? We don't know what age would be for which person,” Mehta said.
He said the top court had read right to choose the sexual orientation in the 2018 Navtej Singh Johar judgment, which decriminalised consensual gay sex, and there is no dispute about it.
Mehta said the apex court had said that based on one's sexual orientation, there cannot be any discrimination and there cannot be any dispute about it and that the right of personal autonomy, namely right of choice, was also recognised in the Navtej Johar verdict.
”Now, what is the prayer before your lordships is the right to get the socio-legal recognition of marriage. The question so far argued was what constitutes marriage and between whom marriage can be constituted,” he said, adding, ”The real question is who would take a call on what constitutes marriage and between whom.”
He said the bench can consider saving the rest of the exercise if it is convinced that this has to be preceded by some debate.
”Particularly, when the debate would take place in a forum where there would be assistance of national views, views of experts, views of impacts, views of effects it will have and what are the implications on several laws."
The solicitor general said the legislative policy has always been in all the laws to recognise conventional man and conventional woman.
”No one is sitting on value judgement whether this is good, this is bad. This should be done, this should not be done. There is no stigma attached. The Parliament has accepted their right of choice, their right of sexual preference, the right of autonomy and privacy that is the right of intimate relationship in which your lordships said something happening between two consenting adults in privacy."
Mehta said the limited question is whether the right to marry can be prayed for as a social institution by way of a judicial adjudication before this court.
”Right to marry does not include the right to compel the State to create a new definition of marriage. Parliament can do but it is not an absolute right."
”Mere declaration that they have a right would be begging the question. If they have a right, how would the rights be regulated? How will a variety of problems be solved? And I will give examples my lords which only Parliament can take care of,” Mehta contended.
”It is only the Parliament which can conceive of several situations which would arise in this relationship which is now recognised and can provide for its regulation. It would be impossible for the court to conceive all situations."