Supreme Court’s “Popular Morality” Caution In Same-Sex Marriage Case

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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.
A five-judge constitution bench headed by Chief Justice DY Chandrachud was hearing arguments on a batch of pleas seeking legal validation for same-sex marriage.

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, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

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.

At the start, Solicitor General Tushar Mehta, appearing for the Centre, told the bench a committee headed by the cabinet secretary will be constituted to consider and examine the administrative steps which could be taken for addressing “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.

During the hearing, the CJI said the petitioners are seeking the right to marry and the court is also conscious of the fact that a mere declaration of a right to marry is not adequate in itself unless it is implemented by a statutory provision which recognises, regulates and confers entitlement to those married.

He said the court can ensure by acting as a facilitator that real progress is achieved today in terms of a wider societal acceptance of the right to cohabit together.

The bench said if the petitioners get something out of this exercise, that will be a big positive for them.

Mehta argued the petitioners’ side, while giving their suggestions, should not give jurisprudential ideas and only refer to the factual problems that can be addressed administratively.

“There is no delegation of the judicial power of the court,” the bench observed, apparently referring to the proposed committee that would consider the grievances of gay couples.

“That can never be. Your lordships’ shoulders are the strongest,” Mehta responded.

The arguments remained inconclusive and will continue on May 9.

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