Supreme Court to decide on same-sex marriage recognition; transfers all petitions from High Courts to itself

As the Supreme Court got a step closer to hearing arguments on the legal recognition of same-sex marriage, religious fundamentalists protesting outside the court urged it ignore the various petitions. The matter will be heard next on March 13.

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GETTING a step closer to hearing arguments on the recognition of same-sex marriages, the Supreme Court on Friday transferred all pending petitions before various high courts to itself. This includes eight petitions pending at the Delhi High Court and one before the Kerala High Court.

A three-bench comprising Chief Justice of India Dr. DY Chandrachud, and Justices P.S. Narasimha and J.B. Pardiwala posted the matter for further hearing and directions on March 13.

Since the petitioners in this case are several and may be from distant places, the bench has allowed them to appear virtually before the court. It also gave the same liberty to those petitioners who may not be able to engage a lawyer to argue on their behalf in Delhi.

In addition, the bench has also issued notice on two writ petitions, namely Nitin Karani & Anr. versus Union of India and Utkarsh Saxena & Anr versus. Union of India which, among other things, challenge the requirement of a 30-day notice for solemnisation of a marriage under the Special Marriage Act, 1954.

The bench was hearing a batch of petitions seeking legalisation of same-sex marriage in India under the Special Marriage Act, the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969.

A battery of senior advocates, including Mukul Rohtagi, Anand Grover, Saurabh Kirpal, Dr. Menaka Guruswamy, Neeraj Kishan Kaul and Karuna Nundy appeared for the different petitioners.

The bench also appointed advocates Arundhati Katju and Kanu Aggarwal as nodal counsels, respectively, from the petitioners' and the Union Government's side in the matter, to ensure proper compilation of documents to facilitate the smooth conduct of the proceedings. The court asked the nodal counsels to prepare a common compilation of documents and precedents that could be relied upon by the court during the course of hearing. The court also asked the Union Government to file its counter affidavit against all the petitions by February 15.

Senior Advocate Grover urged the court to set up a "modus operandi" to hear the numerous petitions, referring to the need to hear them in a timely manner.

The Solicitor General of India Tushar Mehta made reference to the batch of petitions currently being heard by the Delhi high court, stating that they were "ripe for hearing" and the Supreme Court might want to wait to have the "benefit of the Delhi high court's judgment". The petitions before the high court were slated to be heard next on April 24, but have now been transferred to the Supreme Court.

The Union Government had filed an affidavit in the Delhi High Court in February 2022 stating that there was a "legitimate State interest" in limiting recognition of marriage to persons of opposite sex only. It also argued that the question as to whether same-sex marriages should be legally recognised can only be decided by the Parliament, stating that judicial interference in this matter would cause a "complete havoc with the delicate balance of personal laws".

Outside the Supreme Court on Friday, a Hindu nationalist group that described itself as 'Unite Hindu Front' staged a symbolic protest claiming that "these type of petitions are being filed time and again to destroy our ancient civilised traditions." The convenor of the organisation, Jai Bhagwan Goel, asked the court to refuse to hear such petitions "so our traditions are not mocked at."

The group also raised placards that read: "Gay marriage is a sin and against Indian culture"; "We teach our children values, we don't teach them how to be homosexual"; "Playing with the traditions of Hindutva won't be tolerated" and "The Supreme Court should stay within its constitutional limits".