In Supriyo @ Supriya Chakraborty & Anr Versus Union Of India in Writ Petition (Civil) No 1011/2022, Solicitor General Tushar Mehta while addressing the Supreme Court on the Centre’s behalf, contended: “A mere declaration by the court, either of acceptance of any right or acceptance of relationship, has its own unknown and unintended consequences. This court has no mechanism to foresee as to how such binding declarations by the highest court of the country can be utilised in future. This is one more fundamental reason as to why the court should always avoid any declaration...”
In response to the contention of the Solicitor General, the Constitutional Bench observed:
“We are all presuming that the declaration will be in the form of a writ that grant this or grant that. This is what we are accustomed to. What I was hinting was, as a constitutional court, we recognise only a state of affairs and draw the limit there,” said Justice S R Bhat, part of the bench which also comprises CJI D Y Chandrachud and Justices S K Kaul, Hima Kohli and P S Narasimha.
Despite the suggestion that the declaration may not be in the nature of a writ, which is enforceable by courts, failed to soften the Solicitor General’s resistance, who objected to the very desirability of a constitutional declaration irrespective of what it might actually entail.
“It was felt that there is a possibility of a declaration being made, something less than marriage but something more than the present status,” the Solicitor General said as he stressed that a constitutional declaration “may not be the correct course of action”.
He further said, “Your lordships' declaration would be a law within the meaning of Article 141, binding all, not just all courts, binding the whole nation.”
The Solicitor General further stated that any declaration of law will bind every individual in the country, including those who are not before the Apex court, and this would undercut the right to be heard in a matter which would have a bearing on all.
He also said a declaration, which is general in nature, may create its own set of complications. “Now, examine a situation where your lordships declare the Law. Your lordships would not be declaring the contours of the declaration, the regulatory powers, what will be the regulations, who will be bound, who will not be bound,” Tushar Mehta averred in the capacity of the Solicitor General
Accordingly, the Constitution Bench of the Supreme Court has reserved judgment on a batch of petitions seeking legal recognition for same-sex marriages, after ten days of hearing.
The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha started hearing the matter on April 18.
There are twenty petitions pending before the bench, filed by various same-sex couples, transgender persons and LGBTQIA+ activists challenging the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955 and the Foreign Marriage Act 1969 to the extent these legislations do not recognise non-heterosexual marriages.
During the course of the hearings, the bench expressed that it will confine the issue only to the Special Marriage Act and will not touch personal laws.
Senior Advocate Dr Menaka Guruswamy, appearing for the Delhi Commission for Protection of Child Rights (DCPCR), in her rejoinder, responded specifically on the submissions of same-sex parenting and adoption rights of same-sex couples argued by the National Commission for Protection of Child Rights (NCPCR).
Citing a statement by the Indian Psychiatric Society, a society which consists of 7,000 psychiatrists all over India, Advocate Guruswamy said that as per the society, there was no evidence to indicate that individuals on the LGBTQIA+ spectrum could not partake in raising a child. On the contrary, discrimination against children raised by queer couples was something which could lead to mental health issues. Thus, as per society, children raised by same-sex parents were to be protected from stigma.
Senior counsel Raju Ramachandran said that his request to strike down Section 4(c) of the Special Marriage Act for excluding the LGBTQI+ community is valid because it means a lack of recognition and denial of equal protection of laws.
He argued that the petitioners in Suprio @ Supriya Chakraborty vs Union of India are an unpopular minority, and therefore, as a protector of an unpopular minority, the top court must walk the full mile and not stop with constitutional declarations.
Hence, the final verdict by the Supreme Court is anticipated on the batch of petitions.
