Today, Chief Justice of India DY Chandrachud reminded the petitioners asking for the legal recognition of gay marriages in India that Parliament has the authority to enact laws governing marriage and divorce and therefore enquired as to the extent of Supreme Court intervention in such issues.
He said, “The framework set out by the court has to be fleshed out by the legislature, even in cases like Vishakha v. State of Rajasthan, where guidelines were issued to fill the legal gaps in dealing with incidents of sexual harassment against women at workplaces.”
The comments were made in response to Senior Advocate Maneka Guruswamy’s claims that the government cannot appear in court and claim that this is a Parliamentary business. She asserted that under Article 32, a community has the right to petition the Constitutional Court when its fundamental rights are infringed.
“Is it feasible to assume the establishment of legislation when placing a positive responsibility on the lawmakers? How do we weave in a duty or a command?” Judge Bhat enquired.
The underlying framework also belongs to us, Guruswamy retorted. The essence of it includes us as well. We cannot be disqualified from this constitutional protection because of the parliament.
The group of petitions for legal recognition for same-sex weddings in India was being heard by the Constitution bench, which is comprised of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.
According to Guruswamy, the petitioners are only asking for a “workable interpretation” of the Special Marriage Act to acknowledge their partnerships rather than any special treatment.
The Special Marriage Act and personal laws are related, the CJI and Justice Bhat said. Therefore, any modifications to the SMA will also have some effect on personal legislation.
Guruswamy concurred, but she also said that anything here would only be consequential. “It will follow,” she assured.
The judge also inquired as to whether the petitioners spoke for the whole community. It implied that some people could desire to “preserve” their current way of life.
“Those who wish to participate in this new definition of relationship can participate,” Guruswamy said. Nobody has to do anything if they don’t want to. People that don’t wish to participate in the community may exist. All couples have the option to make a decision under SMA 21A, which complies with a fundamental constitutional value. More than that, we don’t ask for anything.
The right to family recognition
In support of one of the petitioners, a transgender person seeking marriage equality for all individuals, not just same-sex couples, senior advocate Jayna Kothari argued that everyone has a fundamental right to family and that Article 21 of the Constitution should recognise that right regardless of gender identity or sexual orientation. She asserted that one’s family is the foundation of their existence.
SRISHTI BHARDWAJ, B.COM LL.B
