The Centre on Tuesday crossed swords with a five-judge Constitution bench by questioning the Supreme Court’s decision to examine petitions by the LGBT community seeking recognition for same-sex marriage, but was told by the Chief Justice that “I will not allow anyone to dictate how proceedings will happen in this court”.
A visibly annoyed Chief Justice of India D.Y. Chandrachud told a defiant solicitor-general Tushar Mehta: “I am in charge of the court. I will decide in this court. We will hear the petitioners first. I will not allow anyone to dictate how proceedings will happen in this court.”
Mehta did not relent, cautioning the bench that if the situation warrants, the Centre would not participate in the proceedings as it was of the view that Parliament was the proper forum to decide the issue. Or, the court must issue notices to the states too for their response as it involved various personal laws, Mehta said.
The Jamiat-Ulema-e-Hind, a trenchant critic of the BJP government, also took the stand of the Centre that the court should first issue notice to the states as the matter fell under concurrent jurisdiction. The Jamiat was represented by senior advocate Kapil Sibal.
The Centre, Jamiat-Ulema-E-Hind and the Telangana Markazi Shia Ulema Council have opposed the plea of the LGBT community on the ground that same-sex marriage is against religious principles and scriptures. The National Commission for Protection of Child Rights has also opposed the idea on the ground that it would affect the psychology of children brought up by such parents.
However, the LGBT community represented by individuals and organisations, besides the Delhi Commission for Protection of Child Rights, has supported the plea for same-sex marriage, pleading that it had been recognised in several advanced countries.
When the five-judge Constitution bench of CJI Chandrachud and Justices Sanjay Kishan Kaul, S. Ravindra Bhat, P.S. Narasimha and Hima Kohli formally commenced the hearing, Mehta expressed the Centre’s strong opposition to the proceedings.
He said the Centre had made it clear in an application that the matter should be left to the wisdom of Parliament.
“We have filed an application raising this preliminary objection that if courts can at all enter this area or can only Parliament do it? It has to be seen whether the debate which is to happen… should it be done by court or Parliament?” Mehta argued.
The CJI said the court would hear the Centre at a later stage on the issue of maintainability of the petitions. “We cannot pre-empt the submission of the petitioners,” Justice Chandrachud said.
Mehta countered: “My submissions are only to see which is the forum? The court has to consider first which is the only constitutional forum which can adjudicate on this issue?”
The solicitor-general said the Centre wanted the issue of maintainability to be first resolved and the government did not want to address the matter on merits.
The CJI reiterated that the petitioners should be heard first, at least for 15 minutes, and thereafter the issue could be examined. “Let us hear the canvas of the case first,” Justice Chandrachud remarked.