New Delhi [India], May 9 : Senior Advocate Kapil Sibal, who was appearing for Jamaat-Ulema-I-Hind on Tuesday said before Supreme Court that foreign judgements relating to same-sex marriages are delivered in the context of the socio-cultural environment of the relevant country and they cannot influence the decision-making process in India
Foreign judgments relating to same-sex marriages are delivered in the context of the socio-cultural environment of the relevant country, and in specific factual contexts. Therefore, they cannot influence the decision-making process in India, Sibal submitted before a Constitution Bench hearing petition relating to marriage equality.
The five-judge constitution bench comprising of the Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha is dealing with a batch of petitions pertaining to 'marriage equality rights for LGBTQIA+ community.
Sibal said that rather, they provide insight into the necessity of public discourse and engagement with the issue of same-sex marriages. He argued that changes like these should happen orgcally and incrementally.
Senior Advocate Sibal further argued that union between heterosexual couples recognized within society even in the absence of a law is a sociological phenomenon, the orgc evolution of which has endured thousands of years in different forms. At the heart of societal order is the family unit. Such a unit is necessarily based on a heterosexual union, he said. He further said that marriages in heterosexual unions are recognized by society and that same-sex unions, though prevailing over centuries, were not recognized.
He further said that the Petitioner's argument that the Parliament will not do anything to provide same-sex marriage and for the same reason the court should grant the prayer of declaration is a dangerous argument at its root.
"This is because any declaration or legislation which results in a tectonic shift in society should only be done after a public discourse. Such public discourse should not only be inside the Parliament but also outside Parliament. Thus, any declaration on this issue by the Court will be a wrong step forward as it would end the public discourse", the senior lawyer said.
Senior Advocate Rakesh Dwivedi appearing for another respondent submitted that the Supreme Court in other similarly placed petitions pertaining to the field of social reforms such as Uniform Civil Code, Common Adoption Code, Dowry etc., adjudicated that they belong to the area of the legislature and thus, should not be dealt by the Court.
He further submitted that marriage as a social institution cannot be treated as a fluid concept, as it is about the unity of a man and a woman for a social purpose, where procreation is a factor.
During the hearing, Chief Justice observed that it would be far-fetched to say that the right to marry is not a constitutional right. He opined that each of the core elements of marriage has been protected by constitutional values.
The top court further opined that marriage is entitled to constitutional protection, not just statutory recognition. However, the top court observed that the State has a legitimate interest in regulating marriage and its facets. Thus, the judge observed that it has to be examined whether heterosexuality is a core element of marriage.
Senior Advocate Arvind Datar appeared on behalf of an Applicant - Dr Sukama Acharya and submitted that the Special Marriage Act was enacted in 1954 with the objective to enable inter-religion, inter-caste marriage, therefore, it cannot be challenged on something which is not its objective and should only be tested on its objective. He further highlighted the difficulties the Court would encounter if it ventures into the domain of the legislature.
The hearing will remain to continue tomorrow. Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage.
One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQIA+ community to marry any person of their choice.
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