5-judge Constitution bench to hear pleas to legalise same-sex marriages

The Supreme Court on Monday referred the pleas seeking legal validation of same-sex marriages to a five-judge constitution bench for adjudication, saying it is a "very seminal issue".

A bench headed by Chief Justice DY Chandrachud said the submissions on the issue involve an interplay between constitutional rights on the one hand and special legislative enactments, including the Special Marriage Act, on the other.

The Centre has opposed in the top court a batch of petitions seeking legal validation of same-sex marriages, claiming they will cause a “complete havoc” with the delicate balance of personal laws and accepted societal values.

The bench, also comprising Justices PS Narasimha and JB Pardiwala, said this is a matter which is important enough to be decided by a constitution bench of five-judges.

"Having due regard to the broader context of the petitions before this court, the inter-relationship between the statutory regime and constitutional rights, we are of the considered view that it would be appropriate if the issues raised are resolved by a constitution bench of five-judges of this court...," the bench said while referring to Article 145 (3) of the Constitution, while terming it a "very seminal issue".

"We accordingly direct that the hearing of these petitions be placed before a constitution bench," the apex court said while posting the pleas for hearing on April 18.

Article 145(3) of Indian Constitution says there should at least five judges to hear cases that involve " a substantial question of law as to the interpretation" of the Constitution, or any reference under article 143, which deals with the power of the President of India to consult the Supreme court of India.

Emphasising that the question of granting legal sanction to a relationship is essentially a function of the legislature, the Centre said the issue may have impact on statue like the one for adoption if recognition is granted to same-sex marriage.

"The adopted child of a lesbian couple or of a gay couple does not have to be necessarily a lesbian or a gay," the bench told Solicitor General Tushar Mehta, who was representing the Centre.

The court said in the batch of pleas, the petitioners have sought recognition of the rights of couple of the same gender to marry, and while relying upon the apex court verdicts on right to privacy and decriminalising section 377 of the Indian Penal Code, they have asserted broader constitutional entitlements arising out of right to life and personal liberty, right to dignity and others.

The bench said one of the issues raised before it also relates to the rights of transgender couples to marry.

When one of the advocates urged the court that the proceedings in the matter be live-streamed, the bench said hearings before the constitution benches are already live-streamed.

Mehta told the bench that marriage is not just a contract in case of Hindu law which it is in the Mohammedan law.

"When the question of granting recognition, legal sanction to a relationship is concerned, that is essentially a function of the legislature and for more than one reason," he said.

Giving an example, Mehta said the moment the marriage as a recognised institution between two persons of the same-sex is accepted, the question of adoption comes.

"The parliament will have to examine because the parliament will reflect the will of the people. Parliament will have to examine what could be the position of the psychology of a child who has seen either two men as parents or two women as parents...," he said.

The solicitor general also urged the bench that arguments in the matter should not be cut-short as the judgement on it will affect the society as a whole.

"I will urge one thing. Please do not cut down arguments of any body. This is not just a matter between A and B. This is a judgement which will affect the society as a whole. Please do not cut down even their arguments also. Please have entire conspectus before us because your lordships are shouldering a very heavy responsibility of how the society would develop henceforth," he said.

Mehta said in the 2018 Navtej Singh Johar verdict, in which section 377 of the IPC was decriminalised, the apex court, while recognising the right to love a person of any gender, was very careful in saying that this should not be meant as conferring any right including right to marry.

In a historic judgement in September 6, 2018, the Supreme Court had decriminalised consensual gay sex between adults after years of activism.

"The question is whether this relationship which your lordships have preserved as a part of right to dignity can be given recognition by the state. That is the question," he said.

Senior advocate N K Kaul, appearing for one of the parties, referred to a previous judgement of the apex court and argued it was said that any matter of constitutional and national importance ought to be accessed by as many people as they can.

He requested the apex court to consider the proceedings in the matter to be live-streamed as people need to have access to see what is happening in these proceedings.

Kaul said either the Special Marriage Act could be harmoniously construed to recognise same-sex marriage or the court could rely on the Navtej Singh Johar verdict to recognise it.

The bench said in pursuance of an earlier order passed by the court in this matter, the nodal counsel shall prepare a common compilation of documents together with written submissions.

One of the advocates said the affidavit filed by the Centre in the matter has not dealt with the rights of transgenders.

In an affidavit filed before the apex court, the government has opposed the petitions and submitted that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country.

At the same time it submitted that though the Centre limits its recognition to heterosexual relationships, there may be other forms of marriages or unions or personal understandings of relationships between individuals in a society and these "are not unlawful".

It said western decisions sans any basis in Indian constitutional law jurisprudence cannot be imported in this context, while asserting that granting recognition to human relations is a legislative function and can never be a subject of judicial adjudication.