The right to marry cannot mean that the state is forced to come up with a new definition of “marriage”, the central government asserted on Wednesday, to avoid the Supreme Court hearing the same-sex marriage case. The issue was left to Parliament for the time being. decision.
According to the government, it is “impossible” for a constitution bench to envision complications and situations that may arise after recognizing same-sex marriage and therefore, the only “constitutionally acceptable” option for the top court is to defer. For the knowledge of the Parliament.
Appearing before a five-judge bench headed by Chief Justice of India Dhananjay Y Chandrachud, Solicitor General (S-G) Tushar Mehta, on behalf of the Center requested the court to close the hearing of the matter and Parliament’s decision Wait for a “very complex subject that has deep social implications”.
The S-G, on the fifth day of arguments in the matter, said the court’s exercise would have an unintended impact not only on the society but also on several laws and at least 160 legal provisions beyond the Special Marriage Act (SMA), which he said, if the court Legalizing same-sex marriage is non-negotiable.
On Wednesday, the bench raised similar concerns, noting that many aspects of same-sex marriage may fall within the legislative powers of Parliament, wondering “how far can it go” on bringing same-sex unions within the purview of the SMA. Court can go” Personal law will also be affected It took up the hearing of the matter on April 18 after turning down the Centre’s objections against the judicial determination of the issue. That day, the bench, also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, also clarified that the scope of proceedings under the SMA would be limited to the recognition of same-sex marriage.
The S-G said: “The real question in the matter is who will decide what is a valid marriage and between whom? Debates are required by societies, state legislatures and various civil society groups. My humble prayer is that this court may still save the rest of the exercise by leaving it to the Parliament… by agreeing that it should be preceded by some debates.
Mehta submitted that the legislative policy of the Parliament is clear from the 2019 Transgender Persons (Protection of Rights) Act which protects not only transgenders but many other categories of persons, adding that Parliament has already taken steps to protect them in terms of sexual preference. Accepted the right to choice, autonomy and privacy in the form of intimate relationships.
“But the question here is whether the right to marriage as a social institution can be prayed for through judicial adjudication before this Hon’ble Court. There cannot be compulsion. Parliament can do it, but it is not an absolute right. My appeal is that instead of taking it further, this is a subject which should be left to the choice of the Parliament,” he said.
The S-G said that a mere “vague” declaration on the right to marry would raise the question of how these rights, if they do exist, would be regulated.
“The moment a right is recognised, it has to be regulated. Even today there is no absolute right for heterosexual couples to marry. The law provides for a minimum age, outlaws bigamy, marries between certain prohibits marriage, and separation is also regulated. So, for heterosexual couples the law also regulates when you can marry, how many times you can marry, who you can marry, and you How can there be a legal separation,” he pointed out.
Arguing that the court may not be in a position to envision the many situations that would arise following a declaration that the petitioners seek, Mehta said: “Several regulatory provisions follow legal recognition of social relations. Only Parliament It can only imagine the many situations that may arise and control them. It is impossible for the court to imagine all the possible scenarios.”
He said that the request to this court is to rewrite an enactment (SMA) to suit a situation, but Parliament has the exclusive right to do so. “The heart of the SMA is the recognition of marriage between a traditional man and woman. I am not on recognition but by whom is the question? What the petitioners are seeking has been deliberately omitted in the SMA. Courts cannot change the fundamental nature of the law Courts cannot substitute legislative intent which is manifest. Words of larger dimension cannot be read into words of smaller dimension. These are also the limitations of the courts,” Mehta asserted.
