The Supreme Court on Monday referred a batch of petitions seeking legal recognition of same-sex marriages to a Constitution bench, Live Law reported.
A bench comprising Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala said that it is a matter of “seminal importance”.
In January, a Supreme Court bench headed by Chief Justice DY Chandrachud had transferred several petitions pending before various High Courts to itself, and asked the Centre to submit its response on the matter.
In its affidavit, the Centre had opposed giving legal recognition to same-sex marriages, saying that they are “not comparable with the Indian family unit concept”.
The affidavit had also stated that marriage was not merely a “privacy issue” between two individuals, but it affects the social fabric of the country. “Considerations of societal morality are relevant in considering the validity of the legislature,” it had said.
At Monday’s hearing, the court said that the matters raised in the petitions should be resolved by a bench of five judges in view of Article 145(3) of the Constitution. The provision states that a bench of at least five judges should hear a case that involves a substantial question of law with respect to the interpretation of the Constitution.
Appearing for the petitioners, Senior Advocate KV Vishwanathan argued that the right to choose a partner is part of the right to expression and right to dignity, according to Live Law.
Senior Advocate Neeraj Kishan Kaul, also appearing for the petitioners, told the court that it could either interpret the Special Marriage Act in a way that it recognises same-sex marriages or it could recognise such marriages as valid based on the Supreme Court judgement in the Navtej Singh Johar case.
In the 2018 Navtej Singh Johar case, the Supreme Court had decriminalised homosexuality in India. A five-judge Constitution bench had unanimously held that the criminalisation of consensual gay sex under Section 377 of the Indian Penal Code was “irrational, indefensible and manifestly arbitrary”.
On the other hand, Solicitor General Tushar Mehta, appearing for the Centre, told the court that the right to love has already been upheld but it does not mean that the right of marriage can be conferred, ANI reported.
Mehta said that the recognition of same-sex marriage would give rise to other rights such as adoption. “Parliament will have to see psychology of a child who has not been reared by a father and a mother – these are the issues,” he said.
To this, Chief Justice Chandrachud remarked that adopted child of a lesbian or gay couple would not necessarily be homosexual.
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