SC Hearing Day 8 On Same – Sex Marriage: All You Need To Know

During the hearing of the case seeking the legalization of same-sex marriages, the Supreme Court expressed the view that marriage is not just a statutory right, but a constitutional right. The Constitution Bench, consisting of Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, stated that the core elements of marriage and the protections granted to married couples entitle marriage to Constitutional protection. The court also questioned whether heterosexuality is a core element of marriage. The bench further added that the Constitution is a tradition-breaker, as exemplified by the outlawing of untouchability despite it being a held hallowed tradition in society.

Senior Advocate Rakesh Dwivedi argued against a fundamental right to marry for same-sex couples during the hearing. Justice Bhat commented that the Constitution recognizes the individual at the highest level, and the right to marry is inherent and can be located in Article 19 or 21. The bench continued to hear arguments from the counsel for the respondents on the eighth day of the hearing. Dwivedi argued that the issue of same-sex marriage belongs to the legislative domain, and the court could not make any vague or amorphous declaration recognizing same-sex unions.

During the hearing of the batch of pleas seeking legal recognition of same-sex marriage, Justice Narasimha suggested that the Court could acknowledge the issue and leave it to the legislature to take it forward.

Senior Advocate Kapil Sibal, who was representing Jamiat Ulama I Hind, opined that the matter should be part of public discourse and discussed in parliament. He argued that same-sex and heterosexual unions are distinct and that the court cannot direct parliament to make a law or discuss recognition for the former. Sibal also pointed out that relying on foreign judgments by the petitioners was inappropriate as they were in different contexts and scenarios than in India. Senior Advocate Arvind Datar argued that the Special Marriage Act must be examined based on the stated objective by which parliament enacted it.