New Delhi, May 10 The Centre on Wednesday told the Supreme Court that the court's hinting on Tuesday at a possibility of declaration being made something less than marriage but something more than the present status may not be the correct course of action.
It stressed that the legislature has the wherewithal to regulate the fallout and the court "will not be able to foresee, envisage, comprehend, and thereafter deal with the fallout of that declaration".
Solicitor General Tushar Mehta, representing the Centre, submitted before a five-judge bench, headed by Chief Justice of India D.Y. Chandrachud, that during Tuesday's dialogue, "it fell from your lordships that there is a possibility of declaration being made something less than marriage but something more than the present status".
"Having examined that, my lord, that may not be the correct course of action. Your lordships' declaration would be a law within the meaning of Article 141, binding all and not all just courts, binding the whole nation," he said.
On Tuesday, senior advocate Kapil Sibal, assisting the court, in a debate over the issue of same-sex marriage countered the petitioners' side argument that since Parliament would do nothing about their right to marry, the apex court must issue a constitutional declaration to force it to enact a law giving legal sanction to their marriages.
"I say that it is a very dangerous route to take," he said.
The bench - also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha observed that it may not be correct to say the apex court cannot issue a constitutional declaration. It had said that the Parliament, in the past, did follow up on constitutional declarations by making laws.
During the hearing on Wedneday, Mehta said that "the difficulty would be this, any declaration of law would bind every individual in the country, who is not before your lordships...".
Citing a baker's case, Mehta continued that one baker refused to bake a cake in same-sex marriage and he was prosecuted etc. "Similar thing (happened) after the judgment of the American Supreme Court 5 vs 4, one pastor refused to perform the ceremony of marriage and he was sought to be prosecuted and they have to come out with a law, Pastor Protection Act".
He contended that "now examine a situation where your lordships declare the law, your lordship will not be declaring the contours of the declaration, the regulatory powers, what will be the regulation - who will be bound and who will not be bound".
"Suppose someone goes to a priest for performing a particular ritual and the priest says as per my religion, it is only husband and wife who can sit and a man and a woman can sit in performance of that ritual, I will not be a party to it. I am posing a question to myself, would he not be guilty of contempt of your lordship's declaration," said Mehta.
At this juncture, Justice Bhat said that is the priest's fundamental right to follow his conscience and faith.
As Mehta questioned where does that conscience stops, and where his duty ends or begins, Justice Bhat said: "What is the form, content and contours of the declaration is important, we are all presuming that declaration will be in the form of writ that grant this or grant that. This is what we are accustomed to. What I was hinting at as a constitutional court, we recognize only a state of affairs and draw the limit there."
Mehta said: "My worry was this when a declaration is made either by legislature or court, legislature has the wherewithal to regulate the fall out. Your lordship will not be able to foresee, envisage, comprehend, and thereafter deal with the fallout of that declaration. Fallout can be manifold in various facets of life".
The bench then queried if declaration from this court will apply to everyone individual in the nation and pre-empt the legislature from considering?
Mehta said, "I am slightly on a different point, it may not pre-empt the legislature, the legislature can still do something, but..."
Concluding his submissions, Mehta said: "We had we had written letters to state governments, there are seven responses - Manipur, Andhra Pradesh, Uttar Pradesh Maharashtra, Assam, Sikkim and Rajasthan... Rajasthan take the position we have examined it and we are opposed to the position which the petitioners are taking. All rest say that this needs an intense and expansive debate and we will not be able to respond immediately."
The apex court will continue to hear petitions seeking legal sanction for same-sex marriage on Thursday.
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