Supreme Court on Tuesday observed that at this stage it could “steer clear of personal laws” and focus on interpretation of the Special Marriage Act to open doors for same-sex marriage.
On day 1 of the hearing on pleas seeking recognition of same sex marriage, the five-judge Constitution Bench acknowledged that if the arguments touched on the Hindu Marriage Act, then it opened a pandora’s box for contentions in all personal laws.
There is “sage wisdom” in going about the “interpretive task” in an “incremental manner”, Chief Justice of India DY Chandrachud observed. Supreme Court called for “judicial discretion” and advised the scope of arguments to be confined to this “incremental canvas” limited to the interpretation of the Special Marriage Act, and if it succeeds, “then allow society to evolve”, and “parliament’s perception to evolve over a period of time”.
“Because then the parliament also responds to the evolution of society,” CJI Chandrachud added.
BOOM recaps the arguments made on day 1 of the Constitution Bench hearing. You can watch the entire proceedings on the link below.
There is a time for everything, and the time may come: SC on same-sex marriage
Supreme Court on Tuesday made a case for steering clear of personal laws and restricting arguments to the interpretation of the Special Marriage Act only.
Justice Sanjay Kishan Kaul—one of the five judges on the bench—said how the Special Marriage Act is interpreted (to grant rights for same-sex marriage) will then give rise to other issues that may crop up in personal laws. Issues may survive for another day, or may not survive at all depending on the view we take on this core issue, Justice Kaul added.
Justice Kaul agreed with CJI Chandrachud and said that “sometimes incremental changes in issues of social and society ramifications are a better cost.”
There is a time for everything. There is a time for some things to come. Therefore what was being suggested was – Don’t step into personal laws,” Justice Kaul observed. Can the Special Marriage Act be interpreted in a manner by reading into it a gender-neutral situation,” the judge said.
Justice Kaul, is one of the five judges on the bench along with CJI Chandrachud. Justices Hima Kohli, S Ravindra Bhat and PS Narasimha are the other judges on the bench who are hearing pleas seeking recognition of same-sex marriage.
No absolute concept of man, woman: SC on gay marriage rights
During arguments, CJI Chandrachud said there is no absolute concept of man or woman while countering the Centre’s submission on laws being limited to a biological man and a biological woman.
CJI Chandrachud also acknowledged that on one hand the LGBTQIA+ community are entitled to assert their right to make choices and live as they want but then, as social beings living in a society, they cannot be subject to societal terms and conditions.
“Yes each of us is a social animal and so the state cannot say that we will leave you alone, but the state also cannot say that the benefits of social institutions will be deprived…There is a positive obligation on the state...,” the bench said in response to the Centre’s denial of marriage rights to the queer community.
Denial of marriage rights only stumbling block to equality: Gay couple
Senior advocate Mukul Rohatgi, while representing at least two gay couples, argued that as a society the queer community was facing daily stigma because they are in the minority.
“We are called ‘queer’ because we are believed to be ‘no good’... People look at us when we walk hand-in-hand... We should not be discriminated against…My action may not be criminalized but I am being stigmatized,” Rohatgi added.
The Constitution does not make two classes of citizens. Stigmatization continues despite court orders. The government itself stigmatizes arguing ‘How are you equal’ (to the larger heterosexual society)? Rohatgi added.
“Until a declaration comes from the highest court, this will continue,” the senior advocate said.
“The LGBTQIA+ community possess the same human rights as a heterosexual person and thus they have a right to marry and cannot be said to be left alone...” Rohatgi told the Supreme Court.
Rohatgi made the case that society did not accept when courts allowed Hindu windows to remarry. “Sometimes the Parliament acts with less alacrity or more alacrity...My only stumbling block was [section] 377 (which criminalized gay sex)…” Rohatgi said. He argued that even though section 377 is gone, the mindset has not changed. That is why the other side (Centre) has called this an urban elitist concept, he said.
“We should not be discriminated against because the LGBTQ is 10,000 (in numbers) and the majority is 10 crores. The government says we are not equals, as if we are in 1920s or 1930s, and that we should be happy with just the 377 judgment.
377 means live the way you want to live in your house but if you come out then face disdain of majority... the former attorney general said.
The Supreme Court will continue hearing arguments on this matter this week.