Supreme Court verdict on same-sex marriage not a surprise, there were omissions in oral arguments: Justice S Muralidhar

Retired Justice S Muralidhar recently opined that there were gaps in the way arguments were presented by the petitioners in the marriage equality case before the Supreme Court of India..Not enough thought was given when it came to the oral submissions made during hearings, although the written submissions were rich, elaborate and captured the issue better, he said. .The former Orissa High Court Chief Justice added that the case should have been heard for a longer period to enable a more detailed hearing in the complex issue.."The verdict did not come as a surprise ... [On] the strategy adopted by the petitioners; there had not been enough thought given - that was one thing lacking. The written submissions if you see, were very rich and elaborate. Much of the complexity of the issue was [captured]. But, for all that to be reflected in oral arguments needs time. The petitioners had the best possible bench they could hope for. There were blanks in the oral submissions. This also brings out the limitations of having oral hearings in a tight manner," he explained..Justice Muralidhar was speaking at a panel discussion on the topic "The Future of Marriage Equality Judgement and the Relationship of Judiciary with Socio-Legal Rights."In a judgment rendered last month, the majority of a five-judge Constitution Bench of the Supreme Court refused to recognize the right of same-sex couples to enter into marriages or have civil unions.Instead, the top court had opined this was a matter for the government to decide on. To that end, the Court said that the Central government should be set up a high-powered committee (HPC) to undertake a comprehensive examination of all relevant factors related to same-sex marriages..Justice Muralidhar recounted that the Supreme Court's hearings in the matter were framed to a strict schedule, given the impending retirement of a judge on the bench (Justice S Ravindra Bhat). However, the issue required a lot of thought, reflection and public engagement on the part of the petitioners, he said. He added that the case could have been heard by a High Court first, like in the decriminalisation of gay sex case."I feel the case should have been kept in the court longer as a strategy, irrespective of a judge retiring ... [the lawyers should have strategised] whether it should have been kept lingering on in the Supreme Court a little longer so that we did not lose that moment," he said..He, however, added that he has no doubt that the issue would ultimately be resolved in favour of the LGBTQ+ community ."I am an eternal optimist, there is no doubt that this issue has to be ultimately in favour of the petitioners. I don't want the petitioners to lose hope, in a democracy there are a lot of opinions and strands of thought. You can see the anxiety in the opinions of the majority and minority, they both want to seem to do the right but don't know how to go about. I think there was not enough time to reflect," he said..The former judge also spoke of how the Supreme Court is a polyvocal court. He added that the petitioners could still push their case before the government's High Powered Committee. "I know some of you have been critical of this committee. just as a strategy make it time-bound. But here, the Court can definitely drive this committee to come up with something definitive which you can respond to and reflect upon, and focus on the problem area.".He emphasised that such struggles take time in Indian society, where practices like honour killings, child marriages, backlash against inter-caste marriages, and dowry deaths are still prevalent."Give time for the public critical mass to develop, it will develop ... These things (discussions) will be the building block for generating mass public opinion in our favour. Otherwise, we cannot enjoy the fruits of a victory in court. Don't lose hope and heart. Every case in the court is not meant to be won. it is a stepping stone in a longer journey in getting rights, and I see this as a first step in this case," he said..Many constitutional court cases are political issues dressed up as legal ones: Justice S Muralidhar.Advocates Gautam Bhatia and Rohin Bhatt, and Zainab Patel (petitioner in the Naz Foundation case) also spoke as part of the panel.The session was hosted by The Caucus, a discussion forum of Hindu College (Delhi University), and its non-profit, student-run, independent and non-partisan monthly magazine, The Probe..[Watch the session]