The Supreme Court accepted to hear a case from the Centre on Tuesday that questioned the petitions seeking the legal recognition of same-sex marriages as lawful.
The arguments made by Solicitor General Tushar Mehta, who brought up the request to decide a preliminary issue, were noted by the bench presided over by Chief Justice DY Chandrachud.
"Yes, it will be listed tomorrow," the bench, which also included justices PS Narasimha and JB Pardiwala, remarked.
The Center has informed the Supreme Court that the recognition of marriage is fundamentally a legislative function on which the courts should refrain from deciding. According to the Center, petitions for legal validation of same-sex marriage reflect an "urban elitist" view of social acceptance.
A five-judge constitution bench led by Chief Justice D Y Chandrachud, which was considering a bundle of petitions seeking legal recognition for same-sex marriages, expressed severe criticism in response to the Centre's request that the matter be decided first.
The CJI apologized to Solicitor General Tushar Mehta, who was representing the Centre, and said, "Mr Solicitor, we are in charge."
The court will first hear the plaintiffs, and the nature and viability of the objection will depend on the canvas opened by the plaintiffs, according to the bench, which comprises of Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
"You can't tell us how to run the proceedings. This is something I have never permitted in my court,” the CJI said.
The SG requested more time to decide how much the government would like to participate after the court stated that it intended to understand the petitioners' side of the argument.
Are you claiming that you don't want to take part? Mehta was questioned by Justice Kaul and said, "I will not go that far." Justice Kaul told the Center's attorney, "It does not look good when you say we will see whether we will participate."
Mehta claimed before the court that he never stated that the government would not take part in the proceedings and that his contribution was focused on the topic of where this problem should be discussed. He claimed that the issue the Supreme Court is considering is essentially the establishment of a socio-legal link.
Mehta made it plain that his preliminary objection is not on the merits when the bench stated that the type of preliminary objection he intends to submit is truly the response to the petitions on merits.
This is solely to determine which forum would decide on the matter, which forum would be the appropriate forum, and which forum would be the only forum permitted by the Constitution for this debate to take place. I respectfully submit that the objection must therefore be heard first because of the nature of the objection," he stated.
Nobody here is aware of the opinions of, say, a farmer in South India or a businessman in the North East. Mehta asserted that this will have social and other effects and that the states should also be heard.
Mehta retorted that he never gave orders to judges.
The petitioners' side, he added, can expand their arguments and provide an overview that is limited to his initial objection.
"Your lordships would study the preliminary submission and then grant me some time in this case since it is extremely delicate.”We might have to think about it.
On November 25 last year, the Supreme Court sought the Center's response to two separate petitions filed by two same-sex couples seeking to assert their right to marry and an order to the relevant authorities to register their marriages under the Special Marriage Act.
Several petitions for legal recognition of same-sex marriages in India are under consideration by a Constitutional Bench of the Supreme Court.
Justices Sanjay Kishan Kaul, S. Ravindra Bhat, PS Narasimha and Hima Kohli are also members of the bench, presided over by Chief Justice DY Chandrachud.
The set of petitions argues that LGBTQIA+ people should also have the freedom to marry the person of their choice and calls for legal recognition of same-sex unions.
The Supreme Court received applications from LGBT couples, but the central government has rejected them.
The Supreme Court received applications from LGBT couples, but the central government has rejected them.
The central government argued in an affidavit filed before the Supreme Court that having a sexual relationship with someone of the same sex and living together as a couple are not comparable to the Indian concept of family, which involves a biological man and woman and the children born of that marriage.
The Center has also filed an application, asking the Court to first determine whether the petitions can stand.
Similar views have been expressed by the Islamic religious organization Jamiat-Ulama-I-Hind, which has stated that ideas such as same-sex marriage come from Western culture and should not be imposed in India. This is because Western society contains extreme atheistic worldviews.
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