New Delhi, Oct 17 (IANS) Delivering the verdict on pleas seeking legal sanction for same-sex marriage, Chief Justice of India (CJI) D.Y. Chandrachud on Tuesday said that queerness is not an urban or elite concept and the right to choose a life partner lies at the root of Article 21 of the Constitution.

He said that Article 15 of the Constitution prohibiting discrimination on the basis of ‘sex’ must be read to prohibit all forms of discrimination based on ‘sexual orientation'.

CJI Chandrachud said that the doctrine of separation of power does not take away power of judicial review and any directions or orders issued for enforcement of fundamental rights cannot be termed as violation of doctrine of separation of power.  

He directed that the committee set up by the Union government will take steps to decide the rights and social entitlements of same-sex couples. 

During the hearing, the top court had asked the Centre to find a way to give same-sex couples basic social benefits, like joint bank accounts or nominating a partner in insurance policies, even without legal recognition of their marital status.

In May, the Constitution Bench, also comprising Justices S.K. Kaul, S.R. Bhat, Hima Kohli, and P.S. Narasimha, reserved its judgment on the issue as to whether same-sex marriage be given legal recognition. 

The batch of petitions challenged certain provisions of the Hindu Marriage Act, Foreign Marriage Act, Special Marriage Act and other marriage laws as unconstitutional on the ground that they deny same-sex couples the right to marry, or alternatively, to read these provisions broadly so as to include same-sex marriage.

The Centre, in its written submissions, had told the Supreme Court that demand for same-sex marriage is a "mere urban elitist views for the purpose of social acceptance", and recognising the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law. 

The central government had stressed that petitions which "merely reflect urban elitist views" cannot be compared with the appropriate legislature which reflects the views and voices of a far wider spectrum and expands across the country.

It contended that legal validation of same-sex marriage will cause "complete havoc" with the delicate balance of personal laws in the country and in accepted societal values.

New Delhi, May 10 (IANS) The Centre on Wednesday told the Supreme Court that the court's hinting on Tuesday at a possibility of declaration being made something less than marriage but something more than the present status may not be the correct course of action.

It stressed that the legislature has the wherewithal to regulate the fallout and the court "will not be able to foresee, envisage, comprehend, and thereafter deal with the fallout of that declaration".

Solicitor General Tushar Mehta, representing the Centre, submitted before a five-judge bench, headed by Chief Justice of India D.Y. Chandrachud, that during Tuesday's dialogue, "it fell from your lordships that there is a possibility of declaration being made something less than marriage but something more than the present status".

"Having examined that, my lord, that may not be the correct course of action. Your lordships' declaration would be a law within the meaning of Article 141, binding all and not all just courts, binding the whole nation," he said.

On Tuesday, senior advocate Kapil Sibal, assisting the court, in a debate over the issue of same-sex marriage countered the petitioners' side argument that since Parliament would do nothing about their right to marry, the apex court must issue a constitutional declaration to force it to enact a law giving legal sanction to their marriages.

"I say that it is a very dangerous route to take," he said.

The bench - also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha -- observed that it may not be correct to say the apex court cannot issue a constitutional declaration. It had said that the Parliament, in the past, did follow up on constitutional declarations by making laws.

During the hearing on Wedneday, Mehta said that "the difficulty would be this, any declaration of law would bind every individual in the country, who is not before your lordships...".

Citing a baker's case, Mehta continued that one baker refused to bake a cake in same-sex marriage and he was prosecuted etc. "Similar thing (happened) after the judgment of the American Supreme Court 5 vs 4, one pastor refused to perform the ceremony of marriage and he was sought to be prosecuted and they have to come out with a law, Pastor Protection Act".

He contended that "now examine a situation where your lordships declare the law, your lordship will not be declaring the contours of the declaration, the regulatory powers, what will be the regulation - who will be bound and who will not be bound".

"Suppose someone goes to a priest for performing a particular ritual and the priest says as per my religion, it is only husband and wife who can sit and a man and a woman can sit in performance of that ritual, I will not be a party to it. I am posing a question to myself, would he not be guilty of contempt of your lordship's declaration," said Mehta.

At this juncture, Justice Bhat said that is the priest's fundamental right to follow his conscience and faith.

As Mehta questioned where does that conscience stops, and where his duty ends or begins, Justice Bhat said: "What is the form, content and contours of the declaration is important, we are all presuming that declaration will be in the form of writ that grant this or grant that. This is what we are accustomed to. What I was hinting at as a constitutional court, we recognize only a state of affairs and draw the limit there."

Mehta said: "My worry was this when a declaration is made either by legislature or court, legislature has the wherewithal to regulate the fall out. Your lordship will not be able to foresee, envisage, comprehend, and thereafter deal with the fallout of that declaration. Fallout can be manifold in various facets of life".

The bench then queried if declaration from this court will apply to everyone individual in the nation and pre-empt the legislature from considering?

Mehta said, "I am slightly on a different point, it may not pre-empt the legislature, the legislature can still do something, but..."

Concluding his submissions, Mehta said: "We had we had written letters to state governments, there are seven responses - Manipur, Andhra Pradesh, Uttar Pradesh Maharashtra, Assam, Sikkim and Rajasthan... Rajasthan take the position we have examined it and we are opposed to the position which the petitioners are taking. All rest say that this needs an intense and expansive debate and we will not be able to respond immediately."

The apex court will continue to hear petitions seeking legal sanction for same-sex marriage on Thursday.

New Delhi, May 9 (IANS) While hearing a bath of pleas for same-sex marriages, Supreme Court on Tuesday queried whether anyone has a fundamental right to marry, or is there no fundamental right to marry at all and stressed that the Constitution itself is a tradition breaker.

A five-judge bench headed by Chief Justice of India D.Y. Chandrachud asked senior advocate Rakesh Dwivedi, representing the Madhya Pradesh government, "forget the issue of same sex, does anyone have a fundamental right to marry? Or, is there no fundamental right to marry at all? Because your submission is that no one has a fundamental right to marry".

Dwivedi said that so far the marriage is between two heterosexual individuals.

The bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, said it is not on heterosexual, "does any citizen of this country for whom this court, our society, our polity, has placed the individual at that highest pinnacle. And, we have gone ahead carved and discovered so many rights -- to personhood, right of choice, right of left alone, privacy, dignity... with all this, the question is does a person or citizen have a right to marry".

Justice Bhat asked: "Is it part of Article 21 or not part of it? We have to start with the premise that there is no unqualified right. Right to free speech is not unqualified right, right to association is not unqualified, personal liberty is not unqualified, right to life. Therefore, there is no absolute right, if we start with that premise. Does the right to life have the concomitant right to marry."

The bench asked Dwivedi to not start the debate that same sex people do not have right to marry, rather start with is right to marry or is there a right to marry.

Dwivedi said heterosexual couples have the right to marry in accordance with their custom, personal law, and religion, and that is the foundation of their right.

The Chief Justice observed: "Therefore, you concede the fact that there is a right to marry under the Constitution, but it is only confined to only heterosexual persons according to you, or is it your argument that there is no right to marry at all as a fundamental right?"

Justice Bhat said: "Custom, culture, religion, rewind 50 years ago inter-caste marriages were not permitted. Even inter-faith marriages unheard of, therefore, the context of marriage has changed."

Dwivedi said: "these changes have been brought about by legislation and legislature can alter the customs. The Constitution only gives a fundamental right to form relations, associations, which is in Article 19 (1) (c) which can be regulated. He added that marriage over the years has resulted in social institutions as a result of society's evolution, and the right to marriage which was existing as a part of social institutions will be accommodated in the right to associate in a particular manner.

Justice Bhat said: "The Constitution has not granted anything. It only recognizes and guarantees, nothing is granted. We're free citizens. We have taken this to ourselves. Right to speak, to associate, these are part of our inherent rights. The Constitution doesn't grant it... Even legislation has only recognised the right to marry is inherent. If we say the right to marry is inherent then it is part of the Constitution. You may locate it in (Articles) 19 or 21a."

Justice Bhat said "the moment you bring tradition, the Constitution itself is a tradition breaker. Because the first time you brought in (Articles) 14, you brought in 15, and 17, those traditions are broken".

The bench queried, "if those traditions are broken, what is held hallowed in our society in terms of caste?"

"We made a conscious (decision)... and said we don't want ita.outlawing untouchability in the Constitution. But at the same time let us be alive to the fact that the concept of marriage has evolved."

Dwivedi submitted that the point is that all these reforms are made by the legislature for the interest of women and children and they do not alter the core aspect of the social institution of marriage, "namely that it's an institution. Hindu marriage is regarded as a Sanskar".

Dwivedi contended that the core aspect of marriage remains and pointed at alimony, maintenance, divorce, inter caste and added that ultimately the marriages remain heterosexual marriages.

The bench observed that to state at the extreme that there was no fundamental right to marry under the Constitution would be far-fetched.

"What are the core elements of marriage? If you look at each element, each is protected by constitutional values," it said.

The Chief Justice said one, marriage itself postulates two individuals to cohabit; two, marriage accompanies with it the existence of family; three, marriage has procreation as a very important ingredient; four, marriage in a significant way is exclusionary to all others; and five, social acceptance of existence of marriage.

The top court will continue to hear arguments in the post -lunch session.

New Delhi, May 3 (IANS) The Supreme Court on Wednesday said Centre's proposal to set up a committee to examine whether certain legal rights could be granted to same-sex couples without legal sanction of their relationship as a "marriage" is an incremental step and "sometimes beginnings are small, those beginning could be very substantial".

The top court stressed that if the government takes the first step forward in this matter, there will be substantial benefit and also substantial advancement in recognition of the relationship of same-sex couples, as it told the petitioners' counsel, "This is a step forward and therefore, don't have to go for all or nothing."

At the beginning of the hearing, Solicitor General Tushar Mehta submitted before a five-judge bench headed by Chief Justice of India, D.Y. Chandrachud, that the government was agreeable to setting up a committee under the Cabinet secretary to examine what types of legal rights could be given to same-sex couples.

"The government is positive. What we have decided is that this would need coordination between more than one ministry. Therefore, a committee headed by no less than the Cabinet secretary will be constituted," Mehta said, as he sought suggestions from the petitioners on the problems they are facing.

Mehta said the government could address these problems so far as legally permissible and requested the petitioners not to give "jurisprudential ideas" as only factual problems could be addressed by the proposed committee.

The petitioners contended that the resolution intended by the government was in the nature of administrative tweaking, and not legal.

Senior advocate Abhishek Manu Singhvi, representing one of the petitioners, said whatever is given by administrative tweaking is certainly welcomed and it should be seen as a constructive effort towards convergence, it may not be a substitute and there "won't be any major solution".

Singhvi stressed that substantive changes in the law would be required to grant legal recognition to same-sex marriage.

Senior advocate Saurabh Kirpal, appearing for a petitioner, said at various seminars they have spoken to gay people and 99 per cent of them came up and said the only thing they want is to get married.

Senior advocate Menaka Guruswamy, also representing the petitioners' side, submitted before the bench also comprising justices S.K. Kaul, S.R. Bhat, Hima Kohli and P.S. Narasimha that "young people in our country want marriage. I don't say this as an elite lawyer. I say this as someone having met these young people. Do not let them experience what we have experienced".

At this juncture, the Chief Justice said that at the constitutional level, there is a serious problem if one goes by what young people feel, as a constitutional court then, "we would be subject to volumes of data on how people feel... Therefore, the great salutary safeguard of the constitutional adjudication is that the court is to go by what the Constitution mandates, therefore we do not go by either popular morality or segmental morality, we decide what the Constitution says."

The Chief Justice said: "The moment you say young people feel, I am sure there would be people on the other side who will be willing (to share material with the court)... about what the country feels, let us not get into it at all. Therefore, what we were suggesting is this - we get your point that you seek right to marry, we are also conscious of the fact that mere declaration of right to marry is not adequate in itself unless it is implementable by statutory provision, which recognises, regulates, confers entitlements on those who are married."

The bench said "everything you achieve, should be in incremental steps� the court by acting as a facilitator... that real progress is achieved today in terms of your wider societal acceptance of the right to cohabit together..."

The bench emphasised that there are too many interlinkages with other statutes, including personal laws which "we would be treading upon perhaps, which lie outside the domain of judicial review, then what?"

The bench said it has to decide the case as a matter of concept, but to the extent that the government has taken the first step forward, there would be a substantial benefit and advancement in the recognition of cohabitation of same-sex couples.

The CJI told the petitioners that mere declaration of right to marry is not adequate itself, unless it is implemented by statutory provision, which recognises, regulates and confers entitlement on those who are married.

Last week, the top court had asked Mehta to seek instructions on whether certain rights could be granted to same-sex couples to ensure their social security and welfare.

During the hearing on Wednesday, Justice Bhat told Singhvi, "Although he (Mehta) is saying administratively there are substantive issues, when you look at insurance, housing etc., these are substantial in terms of benefits, people can expect that it is the actual practical way out... although, it is being termed administrative, it would translate into some changes in the regulation, maybe in law."

Singhvi said some of them will require substantive changes to law, "which I don't think the solicitor is saying, what he is suggesting is that a circular may be changed, office order may be changed".

Mehta replied that whichever mode, manner or method that problem, if permissible, can be addressed.

Justice Bhat said, "Sometimes beginnings are small, those beginnings could be very substantial."

Guruswamy said, "For something as simple as pension, provident fund, gratuity, benefits that only echoes only in a marriage..."

Justice Kaul said "suppose you were to succeed to a limited extent where court is inclined to give a status of marriage or some other status not marriage, there will be many changes required in administrative proceedings and also legislative aspects.

"They (government) are reluctant to give the status of marriage but they are not reluctant to sort out problems arising from a gay companionship without labelling it as marriage to the extent possible. Therefore, the suggestion from the bench is that some steps in that direction should be taken," Justice Kaul said.

The Chief Justice said, "When we go to the conceptual domain, we can't be oblivious to the fact that to the extent to which the conceptual domain requires legislative changes, that part clearly lies outside (the purview of the court)... To what extent can the court formulate conceptual doctrines?"

The bench said, "We will have to decide the entire issue as a matter of concept but to the extent the government takes the first step forward there would be substantial benefit and substantial advancement in recognition of the relationship of same-sex couples."

Mehta said the court rightly pointed out that it might need change of law and change of law might need some wider issues of recognition of a particular relationship, then "we have to examine whether it can be done".

The bench noted that the government accepts people do have a right to cohabit and "for instance you know in relation to your right to reside together, bank accounts... the practical issues which can be resolved by the government from your perspective, this is a step forward and therefore, don't have to go for all or nothing."

The top court made these observations while hearing a batch of petitions demanding marriage equality for same-sex couples under the Special Marriage Act (SMA).

The top court asked the petitioners' lawyers to sit with Attorney General R. Venkataramani and Mehta over the weekend for a discussion.

Last week, the top court had queried the Centre, if any executive guidelines could be issued so that same-sex couples so that they can undertake financial security measures such as opening joint bank accounts, nominating partner in life insurance policies, provident fund etc.

However, during the hearing on Wednesday, the bench clarified that this will not prejudice the arguments made by the Centre in response to the petition, and that it would continue to hear the matter on the broader concept of whether same-sex marriage can be recognised under the SMA.

The hearing in the matter will continue on Tuesday next week.

New Delhi, May 3 (IANS) The Centre on Wednesday informed the Supreme Court that it is agreeable to set up a committee to be headed by the cabinet secretary to examine the administrative steps it can take to address some of the concerns in connection with basic social benefits for same-sex couples.

Solicitor General Tushar Mehta, representing the Centre, submitted before a five-judge bench headed by Chief Justice of India D.Y. Chandrachud that in the context of last hearing, the issue was human concerns and the discussion was something that could be done administratively and he has taken instructions.

Mehta said the "government is positive" about taking certain administrative steps and the government is of the view that this would need coordination between more than one ministry, therefore a committee headed by no less than the cabinet secretary will be constituted.

Mehta said counsel for petitioners can give him their suggestions or the problems which they're facing, which the committee can examine and will try and see that so far as legally permissible, they are addressed.

Senior advocate A.M. Singhvi, representing one of the petitioners, objected to the use of the term "administrative" by Mehta, saying that some cosmetic changes would not be enough when the petitioners have been asking for changes in the legal regime. The hearing is in progress.

The top court is hearing a batch of petitions seeking legal sanction for same-sex marriages.

On April 27, the Supreme Court had asked the Centre to find a way to give same-sex couples basic social benefits, like joint bank accounts or nominating a partner in insurance policies, even without legal recognition of their marital status, while it appeared that court could be agreeing that granting legal recognition to same-sex marriages falls within the domain of legislature.

A bench headed by Chief Justice of India and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha had told Solicitor General Tushar Mehta, representing the Centre, "We understand our limitation as a court, no question about it. There are so many issues, of course you have made your argument on the legislative side...so many issues on the administrative side...we do not have a model...it will not be appropriate to devise a model, but we can certainly tell the government that look, how law has gone so far now..."

Mehta said class specific problems can be addressed.

The Chief Justice said, "Now what the government can do to ensure about these relationships based on cohabitation or associations, they must be recognized in terms creating conditions of security, social welfare, and while doing that, we also ensure for future that these relationships should cease to be ostracized in the society."

The top court asked Centre to come back on May 3, with its response on social benefits that same-sex couples could be granted even without legal recognition of their marital status.

New Delhi, April 20 (IANS) The Supreme Court on Thursday observed that looking at India, constitutionally and socially, "we have already reached the intermediate stage that by decriminalising homosexuality, one can contemplate that people who belong to the same sex would be in stable marriage-like relationships".

A five-judge headed by Chief Justice D.Y. Chandrachud observed that in the last 69 years, the law has really evolved.

"When you decriminalise homosexuality, you also realise that these are not one-off relationships, these are also stable relationships...by decriminalising homosexuality, we have not just recognised relationships between consenting adults of same gender...we have also recognised implicitly, therefore, the fact that people who are of same sex would be in stable relationships", said the Chief Justice.

The bench - comprising justices S. K. Kaul, S. Ravindra Bhat, Hima Kohli, and P. S. Narasimha - said that the object of the law in 1954 (Special Marriage Act), was to bring in its fold people who would be governed by a matrimonial relationship apart from their personal laws. The bench told senior advocate A. M. Singhvi, representing some of the petitioners seeking legal sanction for same-sex marriages, that the law is surely capable of broadly reading, "according to you to take into account stable relationship of same sex as well".

Singhvi said, "Let me put it very bluntly. When you enacted the law, in the debate in Parliament, you may not have homosexuals in your mind. You may not have considered them...". The CJI replied, "That makes no difference...".

The bench added that "your principle premise is that when the legislation was enacted in 1954, the object of the legislation was to provide a form of matrimony for people who are not falling back on their personal laws."

The Chief Justice added that from the perspective of institutional capacity, "we have to ask ourselves whether we would be doing something which is fundamentally contrary to the scheme of the statute... or re-writing the entirety of the statute... the court will be making the policy choices, which is for the legislature to make".

Justice Chandrachud said, "So long as we do not straddle that line which divides policy from the judicial process, you're still within the fold of...".

The Chief Justice further added that looking at India, constitutionally and socially as well, "we've already reached the intermediate stage. The intermediate stage postulates that by decriminalising homosexuality...very act of decriminalising homosexuality does contemplate that therefore, people who belong to the same sex would be in stable marriage like relationships...the moment we said it is no longer an offence under Section 377, therefore, we necessarily contemplate that you could have a stable marriage-like relationship between two persons".

The bench added that this is not a chance encounter but something more than not just a physical relationship but something of a more stable emotional relationship, which now is an incident of constitutional interpretation. It added, "Once, we have crossed that bridge then the next question is whether our statute can
recognize...".

The bench will continue to hear the matter at 2 p.m.

The top court is hearing a batch of petitions challenging certain provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws, as unconstitutional on the ground that they deny same sex couples the right to marry or alternatively to read these provisions broadly so as to include same sex marriage.

New Delhi, April 18 (IANS) While hearing a batch of petitions seeking legal sanction to same-sex marriage, the Supreme Court on Tuesday orally observed that there is no absolute concept of a man or a woman and it cannot be only about the genitals, rather it is far more complex.

Solicitor General Tushar Mehta, representing the Centre, submitted before a five-judge bench headed by Chief Justice of India D.Y. Chandrachud that there is a legislative intent that a marriage can only happen between a biological man and a biological woman, including Special Marriage Act.

Chief Justice Chandrachud told Mehta: "Very important judgement you are making. That very notion of a biological man is absolute and the notion of biological woman is also absolute..." Mehta said a biological man is a biological man and it is not a notion.

The Chief Justice said: "There is no absolute concept of a man or a woman at all...it cannot be the definition of what your genitals are, it is far more complex. Even when the Special Marriage Act (SMA) says man and woman, the very notion of a man and notion of a woman is not an absolute, based on what genitals you have...."

During the hearing, Mehta stressed that his preliminary objections against the maintainability of the petitions seeking same-sex marriage should be decided first and added that all states should be issued notices before a decision is made by the top court.

Mehta submitted that the institution of marriage affects personal laws, Hindu Marriage Act is a codified personal law and Islam has their own personal law, and part of them is not codified. The bench - comprising justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha -- replied that it is not getting into personal laws.

Senior advocate Mukul Rohatgi, representing one of the petitioners seeking recognition of same-sex marriage, submitted that his clients seek a declaration that "we have a right to get married." A counsel said that right will be recognised by the state as under the Special Marriage Act and the marriage will be recognised by the state after declaration of this court.

Rohatgi contended that this is because even now we are stigmatised, and this is even after Article 377 judgment, and that the Special Marriage Act should mention 'spouse' instead of man and women.

Senior advocate Rakesh Dwivedi, appearing for one of the parties in the matter opposing same-sex marriages, argued that marriage between man and woman is not a gift of law, but existed since time immemorial and marriages are necessary to perpetuate the human race itself. Dwivedi contended that even SMA has provisions reflective of personal laws and talks about different marriageable age for a man and a woman, and how would one reconcile with these (who is man and who is woman)?

Senior advocate Kapil Sibal submitted that he is all for such relationships but is concerned about the serious societal consequences, which may follow after declaration and questioned, what happens if they adopt a child and later want to separate? Who gets maintenance?

Sibal stressed that if piecemeal arrangement is done then it will create more complications, which will hurt the community and in other countries where same-sex marriages were recognised, they overhauled the entire legal framework.

The arguments in the matter will continue after 2 p.m. The Centre has told the Supreme Court that demand for same-sex marriage is a "mere urban elitist views for the purpose of social acceptance," and recognising the right of same-sex marriage would mean a virtual judicial rewriting of an entire branch of law.

The Centre's response came on a batch of petitions challenging certain provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws as unconstitutional on the ground that they deny same-sex couples the right to marry or alternatively to read these provisions broadly so as to include same-sex marriage.