Recognition of same-sex marriage would require re-enactment of other laws; is this our job? Supreme Court asks [Day 4]

The Supreme Court on Tuesday posed questions on the ramifications of recognizing same-sex marriage and the effect it would have on personal laws that govern issues of succession, adoption and inheritance. [Supriyo and anr v. Union of India].A Constitution Bench led by Chief Justice of India (CJI) DY Chandrachud and also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha pondered how far the Court can go while recognizing such marriage, given that adoption, inheritance etc are all governed by personal laws..In response to a submission by Senior Advocate Menaka Guruswamy that the Constitution's basic structure applies to same-sex couples as well in terms of rights, the CJI remarked,"If we substitute 'man' and 'woman' with 'person' and 'husband' and 'wife' as 'spouse' (in Special Marriage Act)...then can we stop at that? What if two Hindu men married or two Hindu women married...then what will happen to intestate succession? When a woman dies, there is a different line of succession...so long there is dignity or right to family I understand...the difficulty is can we say this much and not further...where do we stop?"Justice Bhat then weighed in, saying that the Court cannot go about covering bases for all eventualities."Just because we do not get into personal law issues since it is a thorny one...but how many follow ups will we play? The major task of re-enacting other laws. Who will do it? Is this our job? That is the final question.".The CJI said that the Court would end up effectively giving a value judgment as to who will be excluded by such recognition."Look at the Payment of Gratuity Act. If an employee dies, law of succession defines who will get the benefits. So, if we say that benefit be given to same-sex couples, so then it will exclude others? Does this not lead to statutory value judgment?"Guruswamy then said all such benefits would accrue to same-sex couples once such unions are read into the Special Marriage Act.Justice Bhat then pointed to Section 21(A) of the Act."It is to preserve the application of personal laws, there is no question of shying away from this.".Section 21A of the Special Marriage Act is a special provision and states:Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply.The CJI added that those wanting to marry under their religious or personal laws would be excluded."Are you truly representing the entire LGBTQIA community? There may be ones who want to preserve their religious choices," Justice Bhat asked."Judicial review is never under inclusive as a concept. There is a lot of thinking to be done in this matter" the CJI opined..Today was the fourth day of arguments in the batch of pleas seeking legal recognition of same-sex marriage. The petitioners continued their submissions today.Senior Advocate Geeta Luthra made submissions for a same-sex couple who were denied recognition under the Foreign Marriage Act."What a travesty this is that a country where there is robust fundamental rights but I am being denied all of these rights.".While making his submissions, Senior Advocate Anand Grover said that the notion that same-sex relationships are an urban, elitist concept, is incorrect..Senior Advocate Jayna Kothari, appearing for a transgender activist, argued that the notion that a family always has a father and mother may not be correct. "There are situations where one spouse has died or that they are separated, but none of these situations are different than the heterogenous ones. Is a family different just because gender identity is different? Thus, this should fall under Article 21. Right to family is recognised under article 21 and, thus, right to marry also has to be granted to same-sex couples," she said.When Guruswamy argued that marriage is a matter of conscience under Article 25, Justice Bhat posed the question,"Can we presuppose the creation of law? We are in a situation where there is no civil rights act...so how do we intervene...We are one step forward and one step backward...both things have to go together...This right has to go with a law. No right is wider than Article 21 but still here when we speak of offence it has to be through a law and in some cases legislative vacuum had to be remedied by parliament. You are stitching verdicts and say that there is a right to same-sex marriage.".Senior Advocate Saurabh Kirpal stressed that courts have to step in when there is an infraction of fundamental rights. "In the march of constitutional law, the Court cannot say how far. The Court has to decide the lis, hear the contentions and deliver a judgment...The issue of brain drain takes place if LGBTQ members have to leave the country. They constitute 7.5 percent of the GDP."Advocate Vrinda Grover pointed out that due to hostility of families of such couples, they are often limited to non-conjugal intimate relations."What we are canvassing before this Court is a new imagination of marriage. Family and love, care and respect is the foundation of this new concept.".The hearing will continue tomorrow, when counsel for the petitioners will wrap up arguments in 45 minutes. Solicitor General Tushar Mehta will then make submissions on behalf of the Central government..[Watch the entire hearing here].[Follow our live-coverage of today's hearing].Follow our detailed coverage of Day 1 of the hearing here and here.Follow our detailed coverage of Day 2 of the hearing here and here.Follow our detailed coverage of Day 3 of the hearing here and here.Read about the 20 petitions seeking legalisation of same-sex marriage here..Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.