Last Updated: May 09, 2023, 17:56 IST
A five-judge constitution bench headed by Chief Justice DY Chandrachud are hearing arguments on same-sex marriage.
(File Photo/ Reuters)
Senior advocate Kapil Sibal argued that any law of this nature which need a “tectonic shift in societal values” needs public discussions and acceptance. This, he adds, includes “inside Parliament, in families and in society.”
The Supreme Court on Tuesday heard arguments on a batch of petitions seeking legal validation for same-sex marriage and discussed how “social acceptability” will be a test in India.
The apex court said that it was “far fetched” to say that there isn’t a fundamental right to marry under the Indian Constitution, as the “core elements of marriage are protected under the constitutional values.”
“Marriage can find its origins under Article 25, and under Hindu Laws it is considered sacrosanct and not a contract,” it added.
Former Union Minister and senior advocate Kapil Sibal requested the court to pass a declaration on granting “legal recognition” to same-sex marriages, and that doing so on the premise that the Parliament won’t pass it would be “dangerous.”
Sibal argued that any law of this nature which need a “tectonic shift in societal values” needs public discussions and acceptance. This, he adds, includes “inside Parliament, in families and in society.”
“Therefore, a declaration by itself on the premise that Parliament is not likely to pass laws is a wrong step forward,” Sibal said.
“There is a need to have a separate regime as to what extent you will recognise or you don’t recognise. It is my request this court declares that,” he added.
Sibal also drew court’s attention to how the society will react and how social acceptance of this would come.
Sibal said that “marriage of heterosexual couples has stood the test of time because it has received acceptance on all three levels – by individuals, family and by the society. Society recognises it and gives it a name and you don’t need a constitution for that. It’s an inalienable right.”
On the other hand, Sibal added, that “if you want to equate same-sex unions to a heterosexual one, you need all the elements which go in heterosexual union being recognized.”
He highlighted that the institution of marriage needs to be seen as an “organic evolution of custom” and its roots comes from “societal standards and morality.”
And therefore, Sibal added that the process needs recognition, then evaluation and then legislation.
“You can’t come directly for seeking a declaration from court,” he said.
A five-judge constitution bench headed by Chief Justice DY Chandrachud are hearing arguments on same-sex marriage. Other judges include SK Kaul, SR Bhat, Hima Kohli and PS Narasimha began hearing the arguments today
During the last hearing on May 3, the court said that it cannot go by what “young people: think a constitutional right should be.
Centre told the apex court that the right to choose a partner does not necessarily imply the right to marry such person over and above the procedure established by law.
With inputs from Ananya Bhatnagar
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