Same-sex marriage: We don't go by popular morality or segmental morality, says SC

We don't go by either 'popular morality or segmental morality' but what the Constitution mandates, the Supreme Court observed on Wednesday when an argument was advanced before it that young same-sex couples across the country wanted to get married.

During the arguments on the seventh-day of hearing, senior advocate Saurabh Kirpal, who is appearing for the petitioners, said they have spoken to gay people at various seminars and 99 per cent of them came up and said the only thing they want is to get married.

Senior advocate Menaka Guruswamy, who is also representing the petitioners' side, said she has spoken at different events and found that young gay couples wanted to get married. "I don't say this as an elite lawyer. I say this having met these young people. Do not let them experience what we have experienced," she told the bench.

Responding to her, the CJI observed, "Dr Guruswamy, there is a problem with this line of argument. I will tell you why. We understand the feelings out of which this argument comes. At the constitutional level, there is a serious problem."

Justice Chandrachud said if, as a constitutional court, the SC goes by what young gay couples feel, then it will be subjected to volumes of data on what other people feel.

"Now, therefore, the great salutary safeguard of constitutional adjudication is that the court has to go by what the constitution mandates," he said, adding, "and therefore, we don't go by either popular morality or a segmental morality. We decide what the Constitution says." "Let us not get into that at all," the CJI said.

Govt to set up panel to look into same-sex couple problems

Earlier, the central government agreed to set up a panel headed by the cabinet secretary to explore administrative steps for addressing concerns of same-sex couples without going into the issue of legalising their marriage.

Solicitor General Tushar Mehta told the Supreme Court that a committee headed by the cabinet secretary will be constituted to look at the issues faced by the same-sex couple.

"Issues of some genuine human concerns will be addressed. The government is positive. This would need coordination by different ministries. A committee headed by cabinet secretary will be formed and suggestions given by the petitioners will be addressed," Mehta said.

"The petitioners can give me the suggestions or the problems which they're facing, which the committee will go into and will try and see that so far as legally permissible, they are addressed," he added.

A five-judge constitution bench comprising Chief Justice DY Chandrachud and Justices SK Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli has been hearing a batch of pleas seeking legal recognition of same-sex marriages in India.

The apex court suggested that the Attorney General for India R Venkatramani, Solicitor General and the lawyers appearing in the matter can hold a meeting over the weekend for a discussion.

"From the drift of the submissions made by SG last time, it appears that the SG also accepts that people do have a right to cohabit and that right is an accepted social reality. Based on that, there may be certain incidents of that cohabitation- bank accounts, insurance policies - these are these are practical issues which can be resolved by the government", CJI was quoted as saying by Live Law.

Appearing for the petitioners, senior advocate Dr Abhishek Manu Singvhi submitted that the substantial constitutional issues are involved in the matter, and hence mere administrative tweaking by the Government may not be helpful.

with PTI inputs