May not be correct course of action: Centre on Supreme Court’s hint on same-sex marriage

NEW DELHI: The Centre on Wednesday told the Supreme Court that the court’s hinting on Tuesday at the possibility of a declaration being made for 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 just courts, binding the whole nation,” he said.

On Tuesday, senior advocate Kapil Sibal, assisting the court, 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 Wednesday, 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 a same-sex marriage, and he was prosecuted, etc. “Similar thing (happened) after the judgement of the American Supreme Court in 5 v. 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, the Pastor Protection Act”.

He contended that “now examine a situation where your lordships declare the law; your lordships will not be declaring the contours of the declaration, the regulatory powers, or what will be the regulation—who will be bound and who will not be bound”.

“Suppose someone goes to a priest to perform 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 it is the priest’s fundamental right to follow his conscience and faith.

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

Mehta said: “My worry was that when a declaration is made either by the legislature or court, the 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 the declaration from this court would apply to every individual in the nation and preempt the legislature from considering it.

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 written letters to state governments; there are seven responses: Manipur, Andhra Pradesh, Uttar Pradesh, Maharashtra, Assam, Sikkim, and Rajasthan... Rajasthan takes the position we have examined, and we are opposed to the position that the petitioners are taking. All the 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. (IANS)

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