The Supreme Court Wednesday made it clear that it has to go by the constitutional mandate while deciding pleas seeking legal validation for same-sex marriage as, if it goes by popular or segmental morality based on the wishes of young LGBTQIA++ persons to get married, those opposed will thrust "volumes of data" in support of their claims.
At the start of the seventh-day hearing, Solicitor General Tushar Mehta, appearing for the Centre, told the apex court a committee headed by the cabinet secretary will be constituted to consider and examine the administrative steps which could be taken for addressing "genuine humane concerns" of same-sex couples without going into the issue of legalising their marriage.
LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally persons.
A five-judge Constitution bench headed by Chief Justice D Y Chandrachud said the great salutary safeguard of constitutional adjudication is that the court has to go by what the Constitution mandates.
Senior advocate Saurabh Kirpal, who is appearing for the petitioners, said they have spoken to such people at various seminars and 99 per cent of them came up and said the only thing they want is to get married.
Senior advocate Menaka Guruswamy, who is also representing the petitioners' side, said she has spoken at different events and found that young LGBTQIA++ couples wanted to get married.
"I don't say this as an elite lawyer. I say this having met these young people. Do not let them experience what we have experienced," she told the bench, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
Responding to her, the CJI observed, "Dr Guruswamy, there is a problem with this line of argument. I will tell you why. We understand the feelings out of which this argument comes. At the constitutional level, there is a serious problem." Justice Chandrachud said if, as a constitutional court, the apex court goes by what such young couples feel, then it will be subjected to volumes of data on what other people feel.
"Now, therefore, the great salutary safeguard of constitutional adjudication is that the court has to go by what the constitution mandates," he said, adding, "and therefore, we don't go by either popular morality or a segmental morality. We decide what the Constitution says." "Let us not get into that at all," the CJI said.
During the hearing, the CJI said the petitioners are seeking the right to marry and the court is also conscious of the fact that a mere declaration of a right to marry is not adequate in itself unless it is implemented by a statutory provision which recognises, regulates and confers entitlement to those married.
He said the implementation of the right, the real achievement of the progress on the ground depends on whether there is a statutory framework for implementing that right. Justice Chandrachud said the court can ensure by acting as a facilitator that real progress is achieved today in terms of a wider societal acceptance of the right to cohabit together.
"Whether we go as far as to recognise the right to marry for couples who are not heterosexual couples is a separate matter. We are dealing with that. We are not shutting that argument. That is why we are hearing this side," the CJI said.
The bench also observed if the petitioners get something out of this exercise, that will be a big positive for them.
Mehta argued the petitioners, while making suggestions, should not give jurisprudential ideas and only refer to the factual problems that can be addressed administratively.
"There is no delegation of the judicial power of the court," the bench observed, apparently referring to the proposed committee that would consider the grievances of gay couples.
"That can never be. Your lordships' shoulders are the strongest," Mehta responded.
The arguments remained inconclusive and will continue on May 9.
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