As the Supreme Court hears petitions seeking legal sanction for same sex marriages, the centre has written to the states, seeking their views on the matter.
The centre, which is opposed to the Supreme Court hearing the petitions, had urged the bench to make states party to the proceedings in the matter. After the court declined this request, the centre said that it should be allowed to hold consultations with the states, and compile and present their views before the court.
The centre told the bench, led by Chief Justice of India DY Chandrachud, that it wrote to states yesterday, seeking their opinion on the matter. The states, it said, are vital stakeholders in the matter. It argued that the question of same sex marriage falls within the legislative domain of the state and therefore, they should be a party to the proceedings. It is important to present a composite view on the question of legal sanction to same sex marriage, the centre has said.
The centre requested the court that proceedings in the matter be adjourned till the consultation with the states was completed. The court, however, decided to continue with the hearing.
The centre has argued that only Parliament can decide on the creation of a new social relationship and said the court must first examine if it can hear this matter. It has said that those part of the proceedings don't represent the views of the nation and that these petitions reflect "urban elitist views".
Responding to Solicitor General Tushar Mehta's submissions, Chief Justice of India DY Chandrachud said the court can't be told how to make a decision and that it wants to hear the petitioners.
He made it clear that the arguments must focus only on the Special Marriage Act and not go into personal laws. The bench, also comprising Justice SK Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha, will hear the petitioners' arguments till Thursday.
On the behalf of the petitioners, Senior Advocate Mukul Rohatgi has said same sex marriage should be allowed in view of the landmark judgment decriminalising homosexuality. Listing the petitioners' demand, he said the Special Marriage Act should mention 'spouse' instead of man and woman.
"We seek a declaration that we have a right to get married. That right will be recognised by the state as under the Special Marriage Act and the marriage will be recognized by the state after declaration of this court. This is because even now we are stigmatised - even if we hold hands and walk. This is even after the Article 377 judgment," said Mr Rohatgi.
The Supreme Court decriminalised homosexuality in a historic judgment in 2018. The court had then held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the IPC was unconstitutional.
Solicitor General Tushar Mehta, said the legislative intent behind the Special Marriage Act has been a relation between "a biological male and a biological female".
To this, the Chief Justice of India said, "There is no absolute concept of a man or an absolute concept of a woman at all. It is not the question of what your genitals are. It is far more complex, that's the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals."
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