Same sex marriage: Jamiat says petitioners' proposal for SC declaration dangerous

‘Jamiat-Ulama-i-Hind’, a body of Islamic scholars, told the Supreme Court of Tuesday the argument advanced by the petitioners that the apex court should make a declaration about legal validation for same-sex marriage as Parliament is not likely to do anything about it, is a “very dangerous proposition”.

Senior advocate Kapil Sibal, appearing for ‘Jamiat-Ulama-i-Hind’, told a five-judge constitution bench headed by Chief Justice DY Chandrachud that a declaration on the premise that Parliament is not likely to pass a law on same-sex union will be a “wrong step forward”.

He told the bench that any law of this nature, which is pursuant to a “tectonic shift” in societal value, requires public discourse which includes discourse within and outside parliament.

Sibal submitted he was “very worried” at the start of the hearing when the petitioners’ side said Parliament is not going to do anything about it so the apex court should make a declaration.

“I am afraid that is a very dangerous proposition. It was said at the outset that we (petitioners) don’t expect the Parliament to move forward, don’t expect Parliament to pass such a law and therefore, your lordships should do it. I say that is a very dangerous route to take,” Sibal told the bench, which also comprised Justices S K Kaul, S R Bhat, P S Narasimha and Hima Kohli.

“It is a dangerous route to take because a declaration by your lordships will close the debate in parliament. There will be no scope for debate once you declare, one that it (same-sex union) is a fundamental right, two it has to be recognised,” he told the bench, which was hearing arguments for the eighth day on a batch of petitions seeking legal validation for same-sex marriage. The bench observed Parliament can overrule a declaration.

“No, your lordships know once your lordships have declared, the Parliament can’t overrule it. I hope that stage has not come for Parliament to overrule what your lordships decide,” Sibal said.

He referred to three judgements of the apex court, including those on right to privacy and decriminalisation of consensual gay sex among adults to buttress his point.

Sibal said the top court is now deciding two things -- sexual unions and recognition by the State of sexual unions.

“First, you have to decide are they a separate sexual identity? In the ultimate analysis, my answer will be yes. The next step, should they be recognised by the State. The answer is, not through a declaration,” he said.

Sibal said then the question arises whether that sexual union is akin to a marriage and, if yes, is it founded in any provision of the Constitution.

“For it to result in certain rights, it can only be done through recognition by the State through legislation. There can't be a (court) declaration to that effect,” he said.

The CJI said the court has in the past issued certain declarations.

“For instance, declaration which postulates that implementation of the declaration requires legislation being enacted by Parliament. Right to a clean environment, for instance. The implementation is for the Parliament,” Justice Chandrachud said.

He added, “Therefore, at its core... to say that the court cannot issue a declaration would not be correct. Equally, we take your point that don’t go into an area where you declare a right to marry.” Sibal said marriage ultimately is a union of two persons and it is a sociological phenomenon which has dealt thus far with heterosexuality.

Regarding the issue of acceptance, Sibal said acceptance is also at three levels - first by two individuals themselves, then by the family and thereafter by the society.

“Who is to investigate that? This is the problem, this is the issue. Who is to look at that? There we need the aid of all kinds of data, opinions, conversations, discourses, debates,” he said.

He added if one looked at the quintessential form of marriage, which is heterosexual couples, why has it stood the test of time.

“Because at all three levels, there is acceptability,” he said, adding society recognises the union of heterosexual couples and gives it a name.

He said nobody can dispute the fact that same-sex couples have a separate sexual identity and even the government has not disputed it.

“All that I say at the end is, in a way, this moment should be celebrated that your lordships are at least dealing with the reality of the situation but that celebration must not result in an over reach, though it must recognise the reality and set systems in place for the state to move forward,” he said.

“Without moving forward my lords, many of these people will be discriminated against. How that is to be done, in what manner it is to be done, I think that the government can ponder over it but as for me my lords, I think that what they have asked for is not a fundamental right. What they must get is something short of it but something that is meaningful,” Sibal said, while concluding his submissions.

The arguments in the matter remained inconclusive and will continue on Wednesday.