New Delhi, April 26 (). The Center on Wednesday urged the Supreme Court to consider leaving the questions raised in the petitions seeking legal sanction for same-sex marriages to Parliament.
On the fifth day of hearing, Solicitor General Tushar Mehta, representing the Centre, told Chief Justice D.Y. Chandrachud told a five-judge constitution bench that the court was dealing with a very complex subject, which would have a profound impact on society.
Mehta said the right to marry cannot be meant to force the government to frame a new definition of marriage and urged the top court to leave the matter to Parliament instead of taking it further. He argued that all religions regard marriage as a social institution that confers legal status and that pre-dating law is not a value judgment.
He said, this court cannot apply different lenses to different categories of persons under the same law. It would be impossible for this court to resolve the situations. And in LGBTQIA Plus, it’s not stated what Plus means and there are at least 72 shades and categories of people in Plus.
Mehta said that if this court recognizes the undefined categories and the decision will affect 160 laws, how will this scenario be handled. He said the real question is who will decide who and between whom the marriage will take place and considering the complexity of the issue and the social implications involved in the subject, this issue should be left to Parliament.
Not only are there several ramifications on society, but there are also unintended consequences on other laws and there are several legal provisions in various statutes, which cannot be addressed if the prayers made in the petitions are allowed, he said.
Mehta asked the bench comprising Justices SK Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, whether the matter should not first go to Parliament or state legislatures?
He said that the Transgender Act of 2019 lays down a legislative policy to cover not only transgender but various other communities and the question is whether the right to marriage can be prayed for in the form of a judicial mandate?
Mehta said that merely declaring that they have a right will not suffice and the moment the right to marry is recognized, it has to be regulated and stressed that there is no absolute right to marry even for heterosexual couples. And according to the law there is a minimum age, bigamy is illegal, there is a rule on separation etc.
He questioned how those rights would be regulated and that many regulatory provisions follow the legal recognition of a social relationship and that only Parliament can imagine the many situations that may arise and regulate them, and Emphasized that it is not possible for the court to visualize all possible scenarios and that Parliament deliberately left out this provision under the Special Marriage Act (SMA) and that person in place of man and woman (in SMA) is of a wider dimension.
Mehta cited the judgment to say that courts should exercise restraint in matters of legislative policies. If the bench is relying on Dobbs (the US judgment against abortion), we are way ahead and fortunately so.
The Chief Justice said that Dobbs said that a woman has no bodily autonomy and this principle has been rejected long ago in our country and said that fortunately, we have gone far ahead of many western countries on many issues. Are.
The arguments will continue in this matter on Thursday as well. The apex court is hearing petitions seeking legal sanction for same-sex marriages.
KC/SGK
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