New Delhi, May 3 (PTI) Madhya Pradesh Wednesday urged the Supreme Court not to rush into granting legal sanction to same-sex marriages and let Parliament, which has the “pulse of the people in hand”, decide the next step, failing which the whole social fabric could be “ripped apart”. The lawyer representing the BJP-ruled state said the society’s preparedness to accept the change was important.
A five-judge Constitution bench headed by Chief Justice D Y Chandrachud, which was hearing a batch of petitions seeking legal validation of the same-sex marriage for the seventh day, was hearing submissions by the Centre and some of the states opposed to the pleas.
At the outset of the day’s proceedings, Solicitor General Tushar Mehta, appearing for the Centre, apprised the bench, also comprising Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, that the government will constitute a committee headed by the cabinet secretary to examine administrative steps that could be taken for addressing “genuine humane concerns”.
The statement was made by the Centre in pursuance of the apex court’s observations of April 27 about whether social welfare benefits like opening joint bank accounts, nominating life partner in provident funds, gratuity and pension schemes can be granted to same-sex couples without going into the issue of legal sanction to their marriage.
Senior advocate Rakesh Dwivedi, appearing for Madhya Pradesh, said the omnibus petitions have been filed seeking to equate all these relationships involving the LGBTQIA++ to heterosexual marriages and for making drastic amendments to the Special Marriage Act.
“Parliament, which has the pulse of the people in hand, is in the best position to decide when to take the next step, what should be the next step, and how it should be brought about… Don’t force it because the whole social fabric can be ripped apart. We do not know what consequences will happen. Slowness is the way forward in such matters, not the speed,” he said.
Preparedness of society to accept the change is also equally important and hence let us not rush, he said.
“Now question is whether there is a fundamental right to marriage and fundamental right to recognition of such marriages and …can this be made permissible by resorting to amending various laws which only the legislature can do,” Dwivedi argued at the outset.
He said the case needed social accommodation and only Parliament is in the position to decide as to how and when to take the next step.
“Whole social fabric will break apart if things are thrust upon the society by the court …we have to take things slowly in this area and not with speed,” he said.
The bench asked Dwivedi as to how the dignity of heterosexual couples will be affected if same-sex marriage is granted legal recognition.
“Because the husband and wife relationship has been a meaningful relationship since antiquity,” he responded.
“So you are saying that marriage is understood as a union between a heterosexual couple. And, by recognising anything apart from that, you (court) are affecting traditional values,” the bench said.
The bench said the Constitution has provisions to enforce fundamental rights which are available to same sex couples as well, and their existence is not something which is imported from some other place but are very much part of the Indian society.
“But fundamental rights do not operate in vacuum and rather, they operate in the context of a given society. That is why I am averse when some try to cross seas,” the senior lawyer said.
He said LGBTQIA++ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally persons) have been there and given dignity but their marriage is not a matter of dignity. “If that were so, then unmarried people would not have any dignity. It is not like that,” Dwivedi said.
The argument is not that people who are single lack dignity or that marriage is the only source of dignity, but the point is about the choice.
“Who’s stopping them? Marry! There is no law. I would be very happy if all these laws were taken away. But these laws are there to protect the interests of women and children because of the command of Article 15(3) of the Constitution which says the State can make a special provision,” the senior lawyer said. “Dignity has nothing to do with marriage. My marriage is not registered. So do I not have dignity? I am not looking for any recognition from any law. We never depend on the State,” he asserted.
The key issue is social acceptance of such relationships which will come from social evolution only and, in the process, the representatives of people need to participate, he said.
The lawyer said the apex court was adjudicating on the petitions despite the fact that marriage related issues are under the Concurrent List of the Constitution where the states also have the law making authority.
He sought rejection of the plea that the Special Marriage Act provisions be not interpreted as per the original intent of the legislature just to allow same sex-marriage to be included in the statute.
“Let it evolve. Heterosexuals have reached here after ages. Since the Navtej judgement (decriminalising consensual gay sex), it has only been four-and-half years. Let there be more debate, more acceptance. Let Parliament feel more confident that something can be done,” Dwivedi said.
Attorney-General R Venkataramani also argued in the matter, saying the court cannot fundamentally alter the basic text of the Special Marriage Act (SMA) and hence the question of reading down the statute to include same-sex marriage does not arise.
“The Special Marriage Act is a law in relation to conventional institution of marriage of heterosexual relations only,” he said, adding a hidden provision cannot be retrieved if it never existed.
Referring to the Vishakha judgement, which pertained to sexual harassment of women at work place, the topmost law officer said the course adopted in that verdict cannot be replicated here both for doctrinal and practical reasons.
“There is no vacuum that can be attributed to the SMA to be filled with judge-made law,” he asserted.
The arguments on the pleas remained inconclusive and Dwivedi will resume advancing his submissions on May 9. PTI SJK ABA SJK SK SK
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