Senior advocate Kapil Sibal, representing the Jamiat, submitted before a five-judge bench, headed by Chief Justice of India D.Y. Chandrachud that he was “very worried” at the beginning of the hearing when the petitioners’ side said that Parliament is not going to do anything about it so the court should make a declaration.
He said it would be a wrong step forward if there were to be a declaration on the premise that Parliament is not likely to pass a law on same-sex union and emphasised that any law of this nature requires public discourse, which includes discourse within and outside parliament.
“I say that it is a very dangerous route to take,” Sibal contended before the bench, which also comprises Justices S.K. Kaul, S.R. Bhat, P.S. Narasimha and Hima Kohli.
Sibal said after the declaration by the court there will be no scope for debate in the Parliament — one that same-sex union is a fundamental right; two, it has to be recognised.
However, the top court said the Parliament can overrule a declaration. Sibal replied that “once your lordships have declared, the Parliament can’t overrule it. I hope that stage has not come for Parliament to overrule what your lordships decide.”
He said the court is now deciding two things — sexual unions and recognition by the state of sexual unions.
Sibal said if question arises whether that sexual union is akin to a marriage and, if yes, is it founded in any provision of the Constitution, and for it to result in certain rights, it can only be done through recognition by the state through legislation, and stressed that there can’t be a declaration from the court.
The top court observed that it takes Sibal’s point that “don’t go into an area where you declare a right to marry.”
Sibal, in the context of acceptance, said it is also at three levels – first by two individuals themselves, then by the family, and thereafter by the society. He argued that nobody can dispute the fact that same-sex couples have a separate sexual identity and even the government has not disputed it.
The top court will continue to hear a batch of petitions seeking legal sanction for same sex marriages on Wednesday.