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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.