The Supreme Court on Tuesday said that from the Navtej Johar judgment, which decriminalised consensual gay sex, till now, there has been an acceptance of same sex relationships and its playing a dialogical role, while adding that the role of the Parliament is indeed relevant here.
A five-judge bench headed by Chief Justice of India D.Y. Chandrachud made it clear that it is for time being not stepping into personal laws at all and restricting it to Special Marriage Act by giving it a gender-neutral interpretation and evolving a civil union concept.
The bench - also comprising Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha - noted: "From the Navtej Johar judgement till now, there has been an acceptance of same sex relationships in universities." It further added that in this evolving consensus, the court is playing a dialogical role and "we know about our limitations".
Senior advocate Mukul Rohatgi, representing some of the petitioners, submitted that law cannot remain static and should change with time, adding that if rights have to be identical, then his clients must get the recognition of their union the same way as the recognition of union of two other heterosexuals.
He added that "since it is based on an implementation of my fundamental rights, I can come to the court and the court need not wait for the legislature", stressing that once the state respects it, the stigma will go.
Rohatgi was assisted by senior advocate Saurabh Kirpal, Dr. Maneka Guruswamy, Arundhati Katju, and a team of advocates from Karanjawala & Co.
The top court noted that it has to exercise its interpretative power in an incremental manner since laws are evolving and asked the petitioners' lawyers to confine themselves to the incremental canvas and then allow Parliament to respond to societal evolution.
"We cannot deny the fact that the Parliament is indeed relevant here," said the bench.
The counsel, opposing the same-sex petitions, cited difficulties for the Hindu Marriage Act and personal laws of various religious groups if the apex court were to hold same-sex marriages valid. The bench said it can keep the personal laws out of the equation and lawyers can address the court on the Special Marriage Act.
Solicitor General Tushar Mehta, appearing for the Centre, submitted that conferment of socio-legal status of marriage cannot be done through judicial decisions and also not by the legislature, while stressing that the acceptance has to come from within the society.
He said Hindus and Muslims and other communities will be affected and urged the court to hear the state governments in the matter. At this, the bench said: "We are not going into the personal lawsa. How can you ask us to decide it? We cannot be compelled to hear everything."
Mehta replied that this will be "short circuiting" the issue and the Centre's stand is not to hear it all.
The bench said it is taking a middle course and "We don't have to decide everything to decide something." It clarified that some petitioners wanted the matter to be dealt with on a broader aspect but it is not going into personal laws etc.
Citing the court's decision on not going into the personal laws, Mehta said earlier judgments opened this window and in future, it would open another window. In response, the bench said: "We cannot bind our future generations long after we are gone and turned to dust..."
The top court will continue to hear the matter on Wednesday.
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, the 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.