SC said - It is the job of Parliament to make law on same sex marriage: Chief Justice said - Court cannot make law, it can enforce it

The petitioners supporting same sex marriage had demanded to register it under the Special Marriage Act. At the same time, the Central Government had called it against the Indian society. In 21 petitions filed in the Supreme Court, the petitioners say that in 2018, the Constitutional Bench of the Supreme Court had canceled a part of Section 377 of the IPC, which considers homosexuality as a crime.

The hearing was conducted by a bench of 5 judges.
The Constitution Bench of Chief Justice DY Chandrachud, Justice Hima Kohli, Justice Sanjay Kishan Kaul, Justice Ravindra Bhatt and Justice PS Narasimha heard the case. Chief Justice Chandrachud, Justice Kaul, Justice Bhatt and Justice Narasimha are delivering the verdict. Chief Justice Chandrachud started it.

Court Room LIVE: 'Homosexuality is not limited only to urban areas' Justice Chandrachud said, 'Homosexuality or queerness is not limited only to the urban elite class. This is not limited to people who speak English and have a good job, but women doing farming in villages can also be queer. To think that queer people exist only in urban or elite classes is like erasing the rest.

'Not all people living in cities can be called queer. Queerness does not depend on one's race or class or socio-economic status. It is also wrong to say that marriage is a permanent and never changing institution. The legislature has brought many reforms in the marriage law through several acts.

Justice Chandrachud said- every person has the right to choose his partner

• Chief Justice Chandrachud said that a transgender woman has the right to marry a man. Similarly, a transgender man has the right to marry a woman. Every person has the right to choose his partner. They can understand what is good and bad for themselves. Article 15 also talks about sexual orientation.
• We all live in a complex society. Our love and cooperation towards each other is what makes us human. We will have to see it. Such relationships can be of many types. We also have to understand Part 4 of the Constitution.
• If the government removes itself from the domestic space, it will leave the weaker party vulnerable. Therefore, it cannot be said that all the activities taking place in private space will be out of the control of the government.
• If the court, based on the current petitions, decides that Section 4 of the Special Marriage Act is unconstitutional because it does not take everyone into account, then this section will have to be removed or new things will have to be added to it.
• If the Special Marriage Act is abolished, it will take the country back to pre-independence times. If the court adopts the second approach and adds new things to it, then it will be doing the work of the legislature.
• If a transgender person is in a heterosexual relationship, then such marriage is recognized by law. Because a transgender person can be in a heterosexual relationship, the marriage of a transman and a transwoman can be registered under the Special Marriage Act.

Center had formed a committee after hearing 20 petitions for 7 days.
After hearing the petitions in the Supreme Court to give legal recognition to same sex marriage, Solicitor General Tushar Mehta had said in the Supreme Court that the Center is ready to form a committee to find solutions to the problems.

Mehta had said that this committee will not enter into the issue of giving legal recognition to the marriage of these couples. Petitioners i.e. same sex couples can give their suggestions regarding the problems. Let them tell us what steps can be taken. The government is positive on this. Yes, it is definitely true that in this matter there is a need for coordination between not just one but many ministries.

April 27, sixth day of hearing: Supreme Court had asked- what is the intention of the government in this matter

The Supreme Court had asked the Central Government, 'If the Judiciary enters into this then it will become a legal issue. The Government should explain what it intends to do in this regard and how it is working for the safety and welfare of such people. Homosexuals cannot be ostracized from society.

On behalf of the Central Government, Solicitor General Tushar Mehta had said, 'The Special Marriage Act is only for people of the opposite gender. It was brought for people of different faiths. The government is not obliged to recognize every personal relationship. The petitioners want a new class to be created with a new purpose. This was never imagined.

April 26, fifth day of hearing: Center had said- new definition cannot be forced.
Tushar Mehta, on behalf of the Central Government, said – The court cannot take different views for different categories of people under the same law. We cannot be forced to come up with a new definition. He said that what is meant by 'Plus' in LGBTQIA+ has not been explained. He asked, there are at least 72 shades and categories of people in this plus.

If this court recognizes undefined categories, the decision will impact 160 laws, how do we streamline this?

Mehta further said that there are some people who refuse to identify under any gender. He said, how will the law identify them? As a man or a woman? One such category says that gender depends on mood swings. No one knows what their gender will be in such a situation. Mehta said that the real question is who will decide in this case what is a valid marriage and between whom. Mehta argued whether this matter should not first go to the Parliament or the state assemblies.

April 25, fourth day of hearing: CJI said - Parliament has the right to intervene on the issues of the petitioners.
On the fourth day of the hearing, CJI Chandrachud said, 'There is no doubt that Parliament has the right to intervene in the issues raised in these petitions. Therefore, the question is how far can the court go in this matter.

On giving rights under the Special Marriage Act, the Supreme Court said, 'If we look at it under the Special Marriage Act, we will have to make reforms in many personal law boards also.' Justice Kaul and Justice Bhatt said that therefore it would be better that they consider whether the right to gay marriage can be given or not. If it goes too deep the matter will become complicated.

Advocate Maneka Guruswamy, appearing for the petitioners, said that Parliament cannot be given reason for depriving the right given in the Constitution. He said that when the rights of any community are violated, they have the right to approach the constitutional bench on the basis of Article 32 of the Constitution. He also told the court that the petitioners are not expecting any special treatment but want a practical interpretation of their relationship under the Special Marriage Act.

April 20, third day of hearing; CJI asked- Is it necessary to have two partners of different genders for marriage?
On the third day of the hearing, there was a debate in the court on the adoption of the child. Advocate Vishwanathan, appearing for the petitioners, said that LGBTQ parents are as capable of raising children as parents of the opposite sex.

The bench did not agree with the argument that gay couples, unlike opposite sex couples, cannot take proper care of their children. The bench said during the hearing that people are now moving away from the notion that there must be a boy. CJI said- Homosexual relationship is not just a physical relationship but is more than a stable, emotional relationship.

April 19, second day of hearing: Central government said- states should also be included in this debate.
On the second day of the hearing, the Central Government appealed that all the states and union territories should be made parties in this case. Abhishek Manu Singhvi, appearing for the petitioners, said that marriage is required to avail the benefits of adoption, surrogacy, inter-state inheritance, tax exemption, tax deduction, compassionate government appointments etc.

At the same time, the Supreme Court told the government that it cannot call it the idea of the urban elite class. Especially when the government has not provided any data in support of this claim. CJI Chandrachud said, 'This may appear to be urban thinking because now people have started coming forward openly in urban areas.'

April 18, first day of hearing: Same sex marriage petitions are considered by the elite class.
On the first day of the hearing, the Supreme Court said that without going into the field of personal law, it will see whether rights can be given to same sex couples through the Special Marriage Act of 1954. On behalf of the Central Government, the Solicitor General had said that these petitions reflect the views of the people of the elite class.

Solicitor General Tushar Mehta, representing the Central Government, argued that legally speaking, marriage is a relationship between a biological man and a biological woman. On this, the Supreme Court said that there is no concrete concept of discrimination between men and women.