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Synopsis

The Supreme Court on Thursday deliberated on whether social security can be met out to same sex couples. The Chief Justice of India was engaging in a riveting exchange with the Solicitor General of India and pointed out that the government could introspect on whether issues that concern the same sex community can be smoothened out.

"We want the government to make a statement to recognise this relationship between same sex couples not as a marriage maybe.... but by some name. We want some element of a broad sense of coalition. Our country has a representative form of democracy and it should reflect," the Chief Justice DY Chandrachud said, after the Solicitor General Tushar Mehta (SG) stated that there was no positive obligation on the state to recognise marriages.

"Right to love, right to cohabit and right to project sexual orientation and right of sexual preference and choosing partner are fundamental rights but there is NO fundamental right to seek recognition of that relationship as a marriage or in any other name," said the law officer while the bench further expanded upon the scope of cohabitation rights.

The CJI pointed out that preventing cohabitation rights from getting legally recognised also deprives the same sex couples from basic rights such as holding a joint bank account as a couple.

It was then that the SG said that the Government was well aware of the issues faced by the community.

"The Government is very open to understanding the problems faced by the community. We will not be adverserial at all. I assure you. There is not doubt that we are awake to the problems faced & if something can be done so their problems are alleviated," SG stated. He added, "Marriage should not have been regulated at all but society felt so as there was a need — and therefore marriage was recognised as a clear legislative policy that it will be heterosexual. There is no positive obligation on the state to recognise marriage"

Justice SK Kaul also pointed, "Our ministries should give thought to this. Is this our original civilisational thought process? Or are we simply following victorian perspectives?"

Apart from the above, the hearing centred around the legislative intent of various personal laws as well as the interconnection of the special marriage act with the Hindu code bills.

The SG, appearing for the union of India also argued how re-legislating would lead to more problems than solutions. He also pointed out the backdrops of judicial review into legal frameworks.

A short discussion on the Vishakha guidelines ensued and the SG pointed out that the guidelines against sexual harassment were a set of directions given by the court.

The hearing will continue next week, Wednesday, i.e., May 3, 2023. The Respondents are arguing the case currently and it is day 6 of the hearing.

 

A Constitution bench of the Supreme Court comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli is seized with the same-sex marriage petitions.

Earlier last month, the Supreme Court had ordered that the pleas seeking recognition for same-sex marriage be heard by a five-judge Constitution bench on April 18 for final disposal.

Case Title: Supriyo@ Supriya Chakraborthy v. Union of India & Anr. (a batch of petitions