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Last updated: May 09, 2023, 17:56 IST
The five-judge constitution panel chaired by Chief Justice D. Y. Chandrachod hears arguments on same-sex marriage. (File photo/Reuters)
Senior advocate Kapil Sibal argued that any such law would require a “radical shift in societal values” that needed public debate and acceptance. This, he adds, includes “within Parliament, in the family and in the community”.
The Supreme Court on Tuesday heard arguments over a raft of petitions seeking legal validation of same-sex marriage and debated how “social acceptance” would be a test in India.
The Supreme Court said it was “far-fetched” to say that there is no fundamental right to marriage under the Indian Constitution, as “the essential elements of marriage are protected by constitutional values”.
She added, “Marriage can find its origins under Article 25, and under Hindu laws marriage is considered sacred and not a contract.”
Former Union Minister and senior lawyer Kapil Sibal has asked the court to make a declaration on giving “legal recognition” to same-sex marriage, and that to do so on the grounds that Parliament would not pass it would be “dangerous”.
Any such law, Sibal said, needs a “radical shift in societal values” that needs public debates and acceptance, and adds that this includes “within parliament, in the family and in society.”
“Therefore, the declaration itself on the grounds that Parliament is not likely to pass laws is a wrong step forward,” Sibal said.
“There is a need for a separate order as to what extent you will or will not know. My request is that this court announce it.”
Sibal also drew the court’s attention to how the community would react and how social acceptance would come for that.
Sibal said that “Heterosexual marriage has stood the test of time because it has been accepted on all three levels – by individuals, family and society. Society recognizes it and gives it a name and you don’t need a constitution for that. It’s an inalienable right.”
On the other hand, Sibal added, “If you want to equate same-sex unions with heterosexual ones, you need to get acquainted with all the elements that go into heterosexual union.”
He noted that the institution of marriage should be seen as an “organic development of custom” and that its roots stem from “societal norms and morals”.
Therefore, Sibal added that the process needs recognition, evaluation, and legislation.
He said, “You cannot come directly to ask for permission from the court.”
The five-judge constitution panel chaired by Chief Justice D. Y. Chandrachod hears arguments on same-sex marriage. Among the other judges, S. Cowell, and S.R. Bhatt, Hema Kohli, and B.S. Narasimha, they are starting to hear arguments today.
During the last session on May 3, the court said it could not go by what “the youth: they think a constitutional right should be.
The center told the Supreme Court that the right to choose a partner does not necessarily mean the right to marry that person in addition to the procedures prescribed by law.
With input from Ananya Bhatnagar
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