Speaking for the bench, the CJI said that it cannot be disputed that Parliament “has the powers to interfere with the canvas” covered by the petitioners. The CJI further remarked that Entry 5 of the concurrent list covers marriage and divorce. “The test really is how far can the courts go.” He said that even if SC issues guidelines to fill lacuna in laws, the framework set out has “to be fleshed out by the legislature”. The central government has repeatedly maintained that SC should leave the instant matter to Parliament.
However, opposing the government’s contention, senior advocate Menaka Guruswamy argued that in case of violation of Fundamental Rights, the aggrieved parties have the right to approach the Constitution court under Article 32. “When you are casting a positive obligation on the lawmakers, is it possible to presuppose the creation of law,” justice S Ravindra Bhat asked.
In response, Guruswamy said that Parliament cannot be the reason to exclude the petitioners from guarantees enshrined under the Constitution. The senior lawyer added the petitioners were merely seeking a “workable interpretation” of the Special Marriage Act for legalising same-sex marriage.
However, the CJI and Justice Bhat remarked that the Special Marriage Act and personal laws were interconnected. Any changes made to the Special Marriage Act will have some impact on personal laws. The bench also enquired whether the petitioners represented the interests of the entire community. The bench remarked that there may be individuals who may want to preserve their current way of life.
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