Supreme Court Says Legalizing Same-Sex Marriage Will Impact Personal Laws, Says Matter Undisputedly Falls Within Legislative Domain
Today marked the fourth day of the Supreme Court Constitution Bench hearing matters seeking the legalization of same-sex marriages.
A Constitution Bench with Chief Justice DY Chandrachud, Justice Hima Kohli and Justice P.S. Narasimha sitting in Court and Justice SK Kaul and Justice S Ravindra Bhat participating virtually, heard the arguments of the petitioners today. The petitioners have been asked to wind up arguments in 45 minutes tomorrow, following which the Union will start its arguments.
In an interesting turn of events, the Supreme Court today asked questions indicating that it may be more appropriate for the Parliament to deal with the issue rather than the Court and that the case will have an impact on personal law, even though the petitioners have argued that they can be granted relief without touching the personal laws.
Reacting to the opening submission by Senior Advocate Menaka Guruswamy that to leave this issue for the Parliament to deal with will be to adopt the British Parliamentary system, CJI Chandrachud said that the Indian Parliament is competent to legislate over the subject matter and that its legislative power is undisputed.
"The point really is that the fact that the canvas which is covered by the petitions does fall within the domain of the Parliament is undisputed. You cannot dispute the fact that the parliament has legislative power over the canvas covered by these petitions, which is the Entry 5 of the Concurrent List of the Constitution", the CJI said.
The CJI said that Entry 5 specifically mentions Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. "Therefore, Entry 5 also recognizes the position that all matters which prior to the Constitution were a part of personal law, fall now within the domain of the Parliament under Entry 5 of list three. Therefore, there is no gainsaying the fact that the Parliament does have the power", he said.
He told the Senior Advocate that her argument to accept the submission of the Union that this is a matter for the Parliament would be to transplant the British Parliamentary model may not be entirely correct.
"..........Parliament has specific jurisdiction on legislative terms by virtue of Article 246(4) read with Entry 5 list 3 to legislate in this area. Now the question is, if this is a power which is conferred specifically on the Parliament, where does the Court really exercise jurisdiction? Which are those interstices which are left open for the Court to exercise its power", Chief Justice Chandrachud asked.
Senior Advocate Guruswamy reacted by submitting that the state has a positive obligation to ensure that fundamental rights are not trammelled.
Justice Bhat then intervened and said, “On the same note, when you are casting a positive obligation on the lawmakers, just go back in the point of time and look at Article 17, which says untouchability is forbidden and is an offence. It presupposes the creation of a law. The first law we had was in Civil Rights Act, 1955. But it was felt to be inadequate. What did the court do? Did the court step in and say this is wrong? According to you it can. That is one situation. We are in a situation where there is no law, there no Civil Rights Act, and if something as assertive and as positive as Article 17 (untouchability) has to be imposed, how would the Courts deal with it? Here we are one step ahead and one step backward also. If it is forbidden and its an offence, and for it to be an offence you need a law. Therefore, horizontal right as well. So there is a concomitant... both things have to be together. That right has to be tranlated into a law. You can’t have a wider right than that. To my mind, there is no right wider than Article 17, which is cast in the most absolute terms and yet they are dependent on the lawmaker, to lay out the conditions in which an offence could be created. Because after all you are dealing with someone else’s life, liberties. Therefore, that legislative vacuum had to be addressed by the Parliament through an enactment. So here we are almost in that situation. But not with such a wide right. It is a derivative right as of now because of…a kind of seamless web which you are trying to expound that the judgments of this Court starting with decriminalization, a general right to privacy..... You are stitching it all to say that you have a right to marry and therefore a need for recognition".
Guruswamy then read Article 17 and submitted that the text of the Constitution made it incumbent on the legislature to have an enactment that would make it an implementable criminal offence.
"There are different kinds of rights in the fundamental rights chapter. Now what you are saying is, something which is now recognized as a right, necessarily has to be translated into law. Unless we create an obligation, short of an obligation of that kind, how do we weave out an obligation or a mandate", Justice Bhat responded.
CJI then joined in and said, "Puttawamy itself arose in the context of Aadhar, then Attorney General Mr. Rohatgi argued that there is no right to privacy based on the judgment of our Court which held that there is no right to privacy. But then were views saying Khadak Singh and the following cases which aid that there is a right to privacy. Puttasawamy came to the Court specifically in the context of informational privacy, which was really the backdrop to Puttuswamy. The concluding part of the Judgment says we would expect the Parliament should come out with a draft bill, a law on privacy…Even in their context of privacy, these rights the court has contemplated have to be flushed out by the legislature. There are cases of course, Vishakha is a classic example where Court has laid down a framework, pending the legislature stepping in and creating a law specifically on the safety of women in workplace. But, the test is really is this: how far does the Court go…?"
The CJI then said that the Court should be addressed on the issue of the impact of a decision of the Court as the petitioners want, in the context of the Special Marriage Act (SMA) on issues which will relate to personal law.
After Guruswamy argued for some time, Justice Bhat interjected again and said that Section 21A of the Special Marriage Act was brought in to preserve the application of personal laws of some communities. "That brings you back. There is no question of your shying away from this....The remit of this is very clear that you will revert to personal law", Justice Bhat said conveying that any decision on the issue will have a bearing on personal laws.
During the further course of hearing, Justice Chandrachud said that the argument that the Court should confine itself to SMA is that "you create for same sex couples, a non religious framework for marriage and whatever follows with it". "There is a value judgment in that. The Court will not give this benefit to those people who still say that I assert my right to say within the fold of my religion. This is for those who are governed by the secular law namely the SMA".
Justice Chandrachud said that even with the SMA, in the case of the four communities, all other incidents of the marriage are governed by personal law which is intrinsically religion based.
"There is no denying or getting over the link between the SMA and personal law", the CJI said.
When Dr. Guruswamy agreed with the CJI, Justice Bhat then the message is that we should brace for more litigation. "Are you to speak for the entire community of the people who are before us? Are you truly representative? There may be diversities. There may be unheard voices who may want to preserve their way of life, their traditions... I am not talking of the general population. I am talking about the communities you represent, that they do not want a break from their traditions. The movement we secularise this and go one step further... we are in denial of their rights", Justice Bhat said.
Dr. Guruswamy responded by saying that only those same-sex couples who want to participate in the new definition of the institution of marriage may participate. "Those who do not want to participate will not participate. Even today many opposite-sex couples opt for a live-in relationship even though they have the benefit of marriage", she submitted.
The CJI responded by saying, "But they will not participate, not because they don't want to participate. But they will not participate for the reason that they do not want to participate at the cost of forsaking their connections to their religious communities. They don't want to break those linkages".
Today Senior Advocates Jayna Kothari, Anand Grover, Geeta Luthra, Saurabh Kirpal and Advocate Vrinda Grover also argued before the Court.