Same-sex marriage hearing: Complex issue, consider leaving it to Parliament, Centre tells SC

Mehta said while there is no stigma attached to sexual orientation or sexual choice, the “real question is who would take a call as to what constitutes marriage and between whom”.

“No one is sitting on value judgement, whether this is good or bad… There is no stigma attached. Parliament has accepted their right of choice, right of sexual preference, right of autonomy and right of privacy… The legislative policy is very clear now in the transgenders Act, where the term transgender is very widely defined to include all shades and all spectrums of what we call LGBTQ+… There are specific provisions where discrimination is prohibited and it’s criminalised,” he said.

“The limited question is whether the right to marry can be prayed for as a social institution by way of a judicial adjudication before the court,” he said.

Stating that it will create problems in the application of other laws, Mehta said: “I have provided a list of 160 Sections from various provisions of law, other than SMA, where it cannot be reconciled with what is sought to be prayed”.

Mehta said “the legislative policy has always been to recognise conventional man & conventional woman… all laws, whether civil or criminal law giving protection to women etc, define man and woman in conventional sense”. When the stated position is being sought to be altered, “should it not go first to Parliament or the state legislature,” he said.

Mehta said the right to marry does not include the right to compel the state to create a new definition of marriage. “Parliament can do, but it’s not an absolute right,” he said.

“Even heterosexuals have no absolute right to marry. A man has to be 21 years and woman 18, meaning law prescribes when to marry. Autonomy goes. Bigamy is prohibited, so law prescribes how many times you can marry till husband or wife is alive. There are degrees of prohibited relationships, meaning law regulates whom not to marry. One cannot simply walk out of marriage, so how to separate is also regulated,” he said.

“Once a legislative recognition is given to a particular form of union, several regulatory provisions come with it, and it is only Parliament which can conceive of several situations which would arise in this relationship and provide for its regulation… It would be impossible for the court to conceive all situations,” Mehta said.

“What petitioners are now seeking to achieve was consciously omitted in the Special Marriage Act. That is one more reason it cannot be read into it,” he said.

Elaborating, he said homosexuality was not something unknown to the members when SMA was being debated. However, they made a conscious decision to use “man” and “woman” instead of “parties”, he said.

The SG also submitted that in 24 of the 29 countries where same-sex marriage is permitted, it was the legislature which took the lead.