In hearing same-sex marriage plea, Supreme Court adopts ‘incremental approach’

The Supreme Court on Tuesday commenced it’s hearing on a bunch of petitions demanding legal recognition for same-sex marriages in India, clarifying that the remit of the proceedings will confine to validation of such marriages under the Special Marriage Act (SMA).

A five-judge bench led by CJI Dhananjaya Y Chandrachud said that it will not be touching upon the aspects of personal laws, adding an “incremental approach” to the process of judicial determination in the case will reflect “sage wisdom”.

The bench said that there is an element of legislative action involved in the matter and thus, it would be prudent to confine the scope of the matter to recognition of same-sex marriages under the SMA.

“Confine yourself to this canvas and allow society to evolve, parliament to evolve... in these times of evolving consensus, we have to move towards a more equal future but at the same time, we have to be conscious of our own limitations,” the bench told the petitioners, led by senior counsel Mukul Rohatgi.

While the petitioners accepted the court’s suggestion, the union government, represented by solicitor general Tushar Mehta, opposed the hearing on the ground that it is exclusively for Parliament to take a call on recognition of same-sex marriages.

According to S-G, the petitioners were wrong in seeking conferment of a legal right of recognition of same-sex marriage from a court, which lacked the jurisdiction to grant such a relief.

Mehta asked the court not to hear the case at all, emphasising that the legislative intent is clear that only a biological man and a biological woman can enter into a valid wedlock.

But the court was not impressed with this proposition.

“There is a value judgment you are making. It entails a biological man and a biological woman... this is wrong. There is no absolute concept of a man or a woman. It can’t be about your genitals are. It’s far more complex than that. The notion of a man and a woman can’t depend only on what your genitals are,” it told Mehta.

It told the S-G that there may be no requirement of hearing the states since the court has decided not to go into the issues of personal law.

Subsequently, Rohatgi began the submissions on behalf of the petitioners, stressing on equal rights for the LGBTQI+ community to get recognition under the social institution of marriage.

“My rights are equal to those of the others. They have a right to marriage, the right of respectability. A concomitant of rights flow from that respectability. The same should be granted to me. We cannot be discriminated upon because we may be ten thousand and the others are ten crores,” he said.

The hearing of the case will continue on Wednesday.