The hearing on the sensitive issue of legal validation of same-sex marriages saw the Centre vehemently urge the Supreme Court on Tuesday to first consider its preliminary objection to the apex court going into the question which is essentially on Parliament's turf.
The insistence by the Centre on the issue to be decided first drew sharp comments from a five-judge constitution bench headed by Chief Justice D Y Chandrachud which was hearing a batch of pleas seeking legal validation for same-sex marriages.
"I am sorry Mr. solicitor, we are in-charge," the CJI told Solicitor General Tushar Mehta, who was appearing for the Centre.
The bench, also comprising Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, said the court will hear the petitioners' side first and the nature and tenability of the preliminary objection will depend upon the canvas which the petitioners would open up.
"You cannot dictate how we will conduct the proceedings. I have never allowed this in my court," the CJI observed.
Mehta responded, he never dictated to courts.
He said the petitioners' side can advance their submissions on what they want and also an overview confined to the preliminary objection raised by him.
"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," the law officer said.
When the CJI observed, "Trust us to have a broader perspective", Mehta said there is no question of 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.
He argued the subject which the apex court is dealing with is virtually creation of a socio-legal relationship of marriage which would be the domain of the competent legislature.
"When the subject is in the concurrent list, we cannot rule out the possibility of one state agreeing to it, another state legislating in favour of it, another state legislating against it. Therefore, in absence of the states being not joined, the petitions would not be maintainable, that is one of my preliminary objections," he said.
The CJI said, "Let us see what is the canvas that they are opening so that we can consider your response."
When the bench said the nature of preliminary objection which he seeks to raise is really the response to the petitions on merits, Mehta made it clear his preliminary objection is not on the merits.
"This is only for deciding which forum would adjudicate upon and which forum would be the suitable forum and, constitutionally, the only permissible forum where this debate can take place. So by the very nature of the objection, it must, in my respectful submission, be heard first," he said.
"None of us knows what are the views of a farmer in south India, a businessman in the North East. This will have social and other ramifications," Mehta argued, adding the states should also be heard.
He said the court can have partial views from both the sides.
"He (petitioner side) may be very clear about his views and I may be very clear about my views but none of us represents the views of the nation," he said.
The bench then proceeded to hear arguments in the matter and senior advocate Mukul Rohatgi, appearing for some petitioners, started his submissions.
The hearing and the consequential outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject.
The apex court on November 25 last year had 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.
