Marriage Equality Hearings: Respondents Urge SC Not to Encroach in Parliament’s Domain

A strong defence of Parliament’s power to make laws marked the respondents’ plea to the Supreme Court to respect the separation of powers.

New Delhi: The five-judge Constitution Bench hearing the petitions seeking declaration of the right to marry of non-heterosexual couples on Tuesday, May 9, engaged with senior counsel representing the respondents on more fundamental issues concerning the right to marry, the scope of the Supreme Court’s declaration of a right, the legitimate interest of the State in regulating marriage, and whether the nitty-gritty of amending the various statutes to keep in tune with a new declaration of right ought to keep the court away from even declaring a new right.

Senior advocate Rakesh Dwivedi cautioned the bench not to consider exceptions like inability to conceive or absence of inclination to procreate among the heterosexual couples as evidence of procreation not being the core element of marriage. He asked the bench how would same-sex couples adopt if the heterosexual couples do not procreate, suggesting that procreation is an important aspect of the institution of marriage, and the object of legitimate state interest in regulating it. Insisting that marriage is not a fluid concept, he asked what would happen if exceptions become the rule, and if marriage is not generally considered as a means to procreate.

The bench wanted to know whether it can follow the method it adopted in the Justice K.S. Puttaswamy case declaring the right to privacy as a fundamental right. The court in that case had stopped where it appeared to it that it was up to Parliament to enact a data protection law, to give effect to its declaration. But the respondents’ submissions didn’t really convince the bench why it cannot do so in this case.

Senior counsel Kapil Sibal pointed out that it is an incorrect premise to seek the intervention of the court on the ground that Parliament is inactive. It is a dangerous argument, Sibal cautioned. But he did not elaborate on how to grant a right if there is a legislative void. The petitioners might have exaggerated the failure of Parliament to address the issue of marital rights of non-heterosexual couples. But there is a distinct legislative void, which needs to be filled by the Supreme Court, the petitioners had suggested, citing the Vishaka case, in which the Supreme Court had laid down guidelines to prevent sexual harassment at work place till Parliament enacted a law for the purpose. To this, Sibal’s answer was that Vishaka and other similar interventions by the court aimed at procedural rather than substantive guidelines.

Senior counsel Arvind Datar appeared more concerned about the challenge of amending various statutes in tune with a possible declaration from the court. Can the mere possibility of side effects or collateral damage or impact on other statutes be a ground to dissuade the bench from declaring a right, the bench wondered. Datar made the point that the court cannot declare a right if the Union is opposed to it.

The arguments will continue on Wednesday.