The Supreme Court on
Tuesday said Parliament undisputedly has the legislative power over issues
raised in pleas seeking legal sanction for same-sex marriage and pondered over
the "interstices" left open for it to exercise its power and till what
extent.
A five-judge
Constitution bench headed by Chief Justice of India D Y Chandrachud was faced
with several consequential legal questions, such as adoption, succession,
intestacy and laws governing pension and gratuity where a once
legally-acknowledged spouse is the beneficiary, if it decides to legalise
same-sex marriage.
The bench observed
that if same-sex marriage is allowed, then the judicial interpretation, keeping
in mind the consequential aspects, will not remain confined to the Special
Marriage Act, 1954 and personal laws will also come into play.
"Now, the question which we really therefore
have to pose is, if this is a power which is conferred specifically on
Parliament, where does the court really exercise its jurisdiction. Which are
those interstices which are left open for the court to exercise its
powers," the bench, also comprising Justices S K Kaul, S R Bhat, Hima
Kohli and P S Narasimha, said.
Observing that there
is no denying that there is a link between the 1954 Act and the personal laws
of various religions, the bench said, "Therefore, you cannot confine to
the Special Marriage Act and it has to go beyond it."
On the fourth day of
the hearing, senior advocate Saurabh Kirpal, who appeared in the court on
behalf of the petitioners, vehemently pleaded for legal validation of same-sex
marriage, saying seven per cent of the country's GDP will be affected if the
LGBTQIA++ (lesbian, gay, bisexual, transgender, queer, questioning, intersex,
pansexual, two-spirit, asexual and ally) are denied this fundamental right.
He said gay and
lesbian people are also like heterosexuals and if their marriage is not
registered here, they will leave for another country for better rights, and
contended that it will be a "gay brain-drain".
"There cannot
be a situation where the court will say that it cannot give everything so it
will give nothing," Kirpal said.
Referring to the possible impact after validating
same-sex marriage, the bench quipped, "Aren't we taking too many
legislative steps here? You are actually bringing in a contemporary (issue)
when the intention was something else that time when the Special Marriage Act
was enacted."
It said the absence
of a broader legislation covering a wider class of persons like the LGBTQIA
community is not a ground to strike down that law.
The bench referred to section 21A of the Special
Marriage Act, which provides certain reliefs to Hindus, Buddhists, Sikhs or
Jains in property and other related issues if they solemnise their marriages
under the law, and said it is very specific and if the court has to make some
provisions of reading it, it has to be consistent with other provisions.
The bench told senior advocate Menaka Guruswamy, who
represented the petitioners, that suppose the top court substitutes the terms
man and woman with "spouse" or "person" in section 4 of the
Act, which deals with conditions relating to solemnisation of special
marriages, the question will be can it "stop at that today".
"Dr Guruswamy, the point really is that the
fact that the canvas which is covered by these petitions also falls or does
fall within the domain of Parliament is undisputed," the CJI said, adding,
"You cannot dispute the fact that Parliament has the legislative power
over the canvas which is covered by these petitions, which is Entry 5 of the
concurrent list," the bench said.
Guruswamy contended that the Centre cannot come to
the court and argue that this a matter for Parliament as when the fundamental
rights of an individual are violated, he or she has the right to approach the
court.
Referring to the 1997 Vishaka verdict that laid down
the guidelines to handle cases of sexual harassment at workplace, the CJI said
it was a classic example where the court laid down the framework pending the
legislature coming up with a law in this regard.
"The test really is this -- how far does the
court go," the bench said.
Referring to the submissions advanced by the
petitioners, it said there is no doubt that adoption, succession and intestacy
are matters governed by personal laws even today.
"My lords have been that north star, not just
for LGBTQ rights, my lords have been the north star in many facets of
fundamental rights pre the legislature walking the talk," Guruswamy said.
She said the petitioners are not asking for anything
special and are only asking for a workable interpretation of the Special
Marriage Act.
"We are also part of 'we the people' and we are
citizens of this country. The basic structure (of the Constitution) also
belongs to us," Guruswamy said.
The bench said the petitioners are right in
asserting that marriage itself is a bouquet of rights and though they have
identified three aspects -- gratuity, provident fund and pension --
"actually, it does not stop at that at all".
It gave an example about the entitlement of one
spouse upon the death of the other in a motor accident.
"How does the court today, if we have to go
into this, avoid getting into other issues which are necessarily intrinsically
interlinked to what you are arguing?" it asked.
Guruswamy argued that a declaration on recognising
same-sex marriage would be the first step.
"How many times are we to play the follow-up?
That is what worries us. Because if we are not to go into it just because it
suits certain cases and that is the thorny issue ... our job is to look at the
workability, not only of what you are showing us illustratively...," the
bench said.
"May I bring to your attention section 21A,
which is very specific, and is within the Special Marriage Act. Because if we
have to make some provision of reading in under that Act, we have to make it
consistent with the other provisions," Justice Bhat said, adding,
"The remit of this is very clear that you will revert to personal laws."
The bench also said
there is no denying that there is a link between the Special Marriage Act and
personal laws.
During the day's hearing, the bench heard the
submissions advanced by several senior advocates, including Geeta Luthra, Anand
Grover, Jayna Kothari, Guruswamy and Kirpal, who appeared for the petitioners.
The hearing, which would continue on Wednesday,
witnessed two judges -- Justices Kaul and Bhat -- joining the proceedings
virtually.
While hearing the arguments on April 20, the apex
court had said it may be redefining the "evolving notion of marriage"
as the next step after decriminalising consensual homosexual relationship will
imply that same-sex people could live in a stable marriage-like relationship.
It had pondered over whether the relationship
between a man and a woman is so fundamental to the Special Marriage Act that
substituting them with the term "spouses" will amount to redoing the
legislation.
Elaborately referring to its 2018 judgment that
decriminalised consensual gay sex, the top court had said it led to a situation
where two consenting homosexual adults can live in a marriage-like relationship
and the next step could be to validate their relationship as marriage.
During the hearing on April 19, the apex court had
said the State cannot discriminate against an individual on the basis of sexual
characteristics over which the person has no control.
It had asserted that the Centre has no data to back
up its claim that the concept of same-sex marriage is "elitist" or
"urban".
On April 18, the bench had made it clear that it
will not go into personal laws governing marriages while deciding these pleas
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 Centre, in one of its affidavits filed in the
apex court, termed the petitions a reflection of an "urban elitist"
view for the purpose of social acceptance and said the recognition of a
marriage is essentially a legislative function that the courts should refrain
from adjudicating.