The Supreme Court on Tuesday began hearing arguments on a batch of pleas seeking legal validation for same-sex marriages, with the Centre insisting its preliminary objection on whether the court can at all go into this question or it would be essentially for the parliament to go into it be heard first.
A five-judge Constitution bench headed by Chief Justice D Y Chandrachud told Solicitor General (SG) Tushar Mehta, appearing for the Centre, that the nature and tenability of the preliminary objection will depend on the canvass the petitioners open up and the court wants to have a view of their argument.
Mehta told the bench, also comprising Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, the petitioners can advance their submissions on what they want and also an overview confined to the preliminary objection raised by him.
"I am sorry Mr solicitor, we are in charge," the CJI told Mehta, adding the court will hear the petitioners’ side first.
"You cannot dictate how we will conduct the proceedings. I have never allowed this in my court," the CJI said.
Mehta responded, he never does this.
"This is a matter, too sensitive an issue, where your lordships would examine the preliminary submission and then give me some time. We may have to consider what would be the stand of the government in further participation in this debate," the SG said.
The CJI said, "Trust us to have a broader perspective."
Mehta said there is no question of a lack of trust.
When the bench said it wants to understand the petitioners’ argument, the SG said, "Then your lordships may give me time to consider to what extent the government would like to participate in this."
"Anything but adjournment," the CJI observed.
"Are you saying you do not want to participate?" Justice Kaul asked Mehta, who responded, "I will not go that far."
"It does not look nice when you say we will see whether we will participate," Justice Kaul said.
Mehta said he never said the government will not participate and his submission is on the question that which forum should debate this issue.
At the outset, senior advocate Kapil Sibal, appearing for one of the parties, said Entry 5 of List III is the Concurrent List.
"Would you be kind enough to hear the states as well," he said, adding that notices have not been issued to the states.
Mehta said the subject with which the apex court is dealing is virtually the creation of a socio-legal relationship of marriage which would be the domain of the competent legislature.
"When the subject is in the Concurrent List, we cannot rule out the possibility of one state agreeing to it, another state legislating in favour of it, another state legislating against it. Therefore, in absence of the states being not joined, the petitions would not be maintainable, that is one of my preliminary objections," he said.
Mehta said he has also filed an application requesting to decide on a question he has formulated as a preliminary question. He said the preliminary objection is whether the court can at all go into this question or it would be essentially for the parliament to go into it.
"Second, we also would like to point out what would be the repercussions. If the court was to take it upon itself in the judicial forum to take this call, the sum and substance of my application would be, if I were to say in one line, the debate which is to happen with respect to the subject matter of creating, conferring a sanctity, legal recognition of a socio-legal institution, should that be the forum of this court or the forum of the parliament?" he argued.
The CJI said, "Let us see what is the canvass that they are opening so that we can consider your response."
The bench said the nature of preliminary objection is really the response to the petitions on merits.
"We will hear you on that at a subsequent stage when you are responding to their arguments," it said.
Mehta made it clear that his preliminary objection is not on the merits.
"This is only for deciding which forum would adjudicate upon and which forum would be the suitable forum and constitutionally, the only permissible forum where this debate can take place. So by the very nature of the objection, it must, in my respectful submission, be heard first," he said.
The SG said while arguing on his preliminary objection, he will not raise any submission on the merits of the case.
"This is not an issue which can be debated by five individuals, very learned, on that side, five individuals on this side, five very brilliant minds of this court, no doubt about it," he said, adding, "None of us knows what are the views of a farmer in south India, a businessman in north-east. This will have social and other ramifications."
The bench said it would consider all these aspects.
"Ultimately, it is your lordships' prerogative but I should not be told generation after generation that we did not bring this to your lordships notice. In the Special Marriage Act as well as in the Hindu Marriage Act, every state has separate rules. That makes more case for calling all the states and hearing them," Mehta said.
He said the court can have partial views from both sides.
"He (petitioner side) may be very clear about his views and I may be very clear about my views but none of us represents the views of the nation," he said.
The bench then proceeded to hear arguments in the matter and senior advocate Mukul Rohatgi, appearing for some petitioners, started his submissions.
The apex court on March 13 referred the pleas to a five-judge constitution bench for adjudication, saying it is a "very seminal issue".
On Monday, the top court agreed to hear a plea filed by the Centre questioning the maintainability of the petitions seeking legal validation of same-sex marriage.
Terming the petitions seeking legal validation of same-sex marriage as one which reflects an "urban elitist" view for the purpose of social acceptance, the Centre has told the apex court that recognition of marriage is essentially a legislative function which the courts should refrain from deciding.
Questioning the maintainability of the petitions, the Centre has said that legal validation for same-sex marriages will cause complete havoc with the delicate balance of personal laws and accepted societal values.
The hearing and the consequential outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject.
The apex court on November 25 last year sought the Centre's response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.
