The supreme court took the step despite the Centre’s insistence that only Parliament appeal on an issue whose complexities could impact “how our society develops from now on”.
A panel of CJI DY Chandrachud and Justices PS Narasimha and JB Pardiwala agreed to invoke the powers of the supreme court under Rule 145(3) to refer the matter directly to a panel of five judges for holding that the petitions requesting the legalization of same-sex marriage had raised major constitutional issues. The hearings will begin on April 18.
With the petitioners provided a 32-hour schedule of discussions by their lawyers, which is just over two weeks, Attorney General Tushar Mehta said, “Please don’t interrupt anyone’s discussions. This is an issue that will affect society as a whole. Please have the full range of the problem. CS takes on the very heavy responsibility of deciding how society will develop from now on. It’s not a matter of a few hours or days, it will have to be worn out”.
A battery of senior lawyers led by NK Kaul, AM Singhvi and Menaka Guruswamy has spoken out in calling for the right to marry for LGBTQ members saying that although Navtej Johar’s ruling decriminalized same-sex sexual relations , the fruits of legalizing the right to love any person of any kind have eluded the highly discriminated members of these communities without conferring the corollary of the “right to marry” as part of their right to dignity.
The SG said that the right to love, the right to expression and the right to freedom of choice of members of the LGBTQ community were articulated by the SC in the Navtej case and nobody is interfering with these rights. “While SC believed the right to love a person of any gender is a right, SC had carefully made it clear that this did not mean conferring the right to marry on these classes of people,” she added.
“When it comes to granting legal sanctions to marriage, it is essentially a function of the legislator. Once same-sex marriage is recognized, the question of adoption will arise. Parliament must look into it. In this, Parliament must debate the psychological impact on a child having same-sex parents, two men or two women, juxtaposed to a child cared for by a heterosexual couple. Parliament will take a call, taking into account social ethics and many other factors that go into the legislative process, whether same-sex marriage can be legally recognised,” the SG said.
Regarding SG’s reference to the psychological impact on children raised by same-sex couples, CJI Chandrachud said: “The adopted child of a lesbian or gay couple need not be lesbian or gay. It depends on the perception of the child”.
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Mehta said, “It could be the personal point of view of the CJI or my personal point of view. It may not be an adequate reflection of the child’s psychology as he is being cared for by such couples, which again could only be debated in Parliament before an appeal is needed to recognize such marriages.
The panel said: “This is a matter important enough to invoke Article 145(3) of the Constitution and refer it to the constitutional panel of five judges. It is a seminal question. The signatories call for recognition of the right to marry for same-sex couples. As well as referring to the court decisions in K Puttaswamy (right to privacy) and Navtej Johar (decriminalization of homosexual sex), the signatories claimed broader constitutional rights stemming from the right to life and liberty, right to dignity enshrined in the provisions of the Constitution, including the preamble and articles 14, 19 and 21.”
“In view of the broader context of applications before this Court and the interrelationship between statutory regime and constitutional rights, it is appropriate that the questions raised be resolved by a panel of five judges, having regard to Article 145, paragraph 3, he said the bench.
The Center files an affidavit in the Supreme Court against same-sex marriage
Clock Same-sex marriage in India: Supreme Court refers all petitions to five-judge constitutional panel