NEW DELHI: The Supreme Court on Monday ordered that the matter related to recognition of same sex marriage would be heard by a five-judge Constitution bench in view of its seminal importance, concerning interplay of various rights including of right to live with dignity.
"We will invoke Article 145(3) of the Constitution and have this matter decided by a Constitution bench of five judges," a bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala said.
The court directed for listing a batch of petitions filed by Supriyo alias Supriya Chakraborthy and others for hearing before a five-judge bench on April 18.
Like all other Constitution bench matters, the proceedings in the matter would be live streamed.
During a brief hearing, Solicitor General Tushar Mehta on behalf of the Union government, said the right to love, express and freedom of choice has already been recognised by the Supreme Court and no one was interfering with those rights but conferring the right of marriage fell in exclusive domain of legislature.
If the marriage as a recognised institution comes between same sex couple, a question will arise on adoption, maintenance etc and therefore Parliament will have to see the issue of psychology of child. It has to be examined whether it can be raised in such a way, he contended.
Senior advocate Neeraj Kishan Kaul, appearing for one of the petitioners, reading the provisions of the Special Marriage Act, said it already recognised marriage between two persons. Referring to the Navtej Singh Johar, K S Puttaswamy and Deepika Singh cases, he said the rights recognised by the Supreme Court are far beyond the narrow interpretation given to the provisions of the Special Marriage Act.
He also said in the Navtej Singh Johar judgement related to decriminalisation of Section 377 of IPC, the Supreme Court's Constitution bench had said the right to life included the right to marriage, procreation and even sexual orientation.
Senior advocate K V Vishwanathan also for petitioners said what is engaged here is right to life under Article 21 and right to expression under Article 19 of the Constitution. Denial of right to marry is denial of right to expression and dignity, these are natural rights to individuals, he said.
Senior advocate A M Singhvi again on behalf of petitioners said the right to marry cannot be withheld to a class of persons solely on the basis of their gender identity and sexual orientation. He also submitted personal laws could harmoniously be read down to make a provision for it. He said on philosophical side, the right to love makes us human and it should be extended.
Mehta, on the contrary, pointed out the SC had specifically in Navtej Singh Johar case clarified on the issue of marriage of same sex couple, which cannot be allowed.
"The question of stigma etc has already been taken care of. The court is shouldering the grave responsibility on how the society would henceforth develop," he said.
Earlier, in an affidavit, the Union government had opposed to the plea for recognising the marriage of same sex couple, saying it would not only violate the codified law but would also cause a complete havoc with the delicate balance of personal laws in the country and the accepted societal values.
It said living together as partners and having sexual relationship by same sex individuals, which is decriminalised now, is not comparable with the Indian family unit a husband, a wife, and children born out of the union who are reared by the biological man as father and the biological woman as mother.
The Centre also maintained that same-sex marriage is not in conformity with societal morality and Indian ethos.
The petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country, despite the decriminalization of Section 377 of the Indian Penal Code, it contended, adding the plea, was, therefore, wholly unsustainable, untenable and misplaced.
