NEW DELHI: A day after the Supreme Court indicated that it may issue a constitutional declaration recognising same-sex marriages, the Centre questioned the desirability of such a move and said it may not be the “correct course of action” as the court will not be able to “foresee, comprehend & control” its fallout.
“A mere declaration by the court, either of acceptance of any right or acceptance of relationship, has its own unknown and unintended consequences. This court has no mechanism to foresee as to how such binding declarations by the highest court of the country can be utilised in future. This is one more fundamental reason as to why the court should always avoid any declaration…,” SG Tushar Mehta told the court on the Centre’s behalf.
The hearing on the ninth day by a CJI-led bench on petitions demanding legal recognition for same-sex marriages also saw the NCPCR opposing the petitioners. To this, the court asked why a live-in or same-sex couple could not be allowed to adopt children when a single person was allowed to do so.

Solicitor general Tushar Mehta’s opposition to the idea of the court issuing a constitutional declaration led the bench to say the assumption that such a declaration may be in the nature of a writ may not be correct.
“We are all presuming that the declaration will be in the form of a writ that grant this or grant that. This is what we are accustomed to. What I was hinting was, as a constitutional court, we recognise only a state of affairs and draw the limit there,” said Justice S R Bhat, part of the bench which also comprises CJI D Y Chandrachud and Justices S K Kaul, Hima Kohli and P S Narasimha.
However, the suggestion that the declaration may not be in the nature of a writ, which are enforceable by courts, failed to soften the solicitor general’s resistance, who objected to the very desirability of a constitutional declaration irrespective of what it might actually entail.

“It was felt that there is a possibility of a declaration being made, something less than marriage but something more than the present status,” Mehta said as he stressed that a constitutional declaration “may not be the correct course of action”. He further said, “Your lordships’ declaration would be a law within the meaning of Article 141, binding all, not just all courts, binding the whole nation.”
Mehta said any declaration of law will bind every individual in the country, including those who are not before the apex court, and this would undercut her right to be heard in a matter which would have a bearing on her. He also said a declaration, which is general in nature, may create its own set of complications. “Now, examine a situation where your lordships declare the law. Your lordships would not be declaring the contours of the declaration, the regulatory powers, what will be the regulations, who will be bound, who will not be bound,” Mehta said.

“Suppose someone goes to a priest for performing a particular ritual and the priest says that as per my religion, it is only the husband and wife who can sit, a man and woman who can sit in performance of that ritual, I will not be party to it. I am posing a question to myself, would he not be guilty of contempt of your lordships’ declaration?” he added.
The bench told him that this is where the form, content and contours of the declaration was important, but the latter remained dissuaded.

Earlier, appearing for NCPCR, additional solicitor general Aishwarya Bhati emphasised the adverse impact on the welfare of children brought up by a same-sex couple and urged the court not to interfere in the accepted societal norm of marriage between a man and a woman.
Bhati said any dilution in the basic character of marriage would impact future generations of children and “any fundamental and paradigm shift in the basic construct of marriage is bound to alter the basic fabric of the family, thereby impacting the ecosystem of the child and the larger fabric of society”.
“The only kind of couples that are eligible to adopt children are heterosexual married couples, to the exclusion of even couples in live-in or any other relationships and that too with strong regulation of age, consent etc,” she said. The bench said an individual could adopt a child and if that individual got into a live-in or same-sex relationship, then it could not be a disqualification and the child could not be taken away. It said there was no doubt that welfare of children was paramount but the paths to ensure welfare were numerous. It asked why a live-in or same-sex couple could not be allowed to adopt children when a single person was allowed to adopt.

02:50

Marriage Equality: ‘Adoption is the norm in many situations, no bar on adoption by same-sex couples,’ says Supreme Court

In his concluding argument, Mehta submitted that the government was of the firm view that a non-heterosexual “union” has no legal recognition under any nomenclature though it is not prohibited. “Mere permissibility to co-exist and stay together or absence of embargo cannot be the ground for claiming right of legislative recognition. The assertion that the right to marriage is limited to the aspects as defined by the legislature is well established. It is, therefore, not a fundamental right to seek legal recognition of any relationship — either union or couples or by any name,” he said.
He said the right to privacy, dignity and expression were limited to non-interference by the state in consensual cohabitation. “Over and above the same, the government has opted to consider certain administrative solutions for the LGBTQIA+ community,” he said. The parties opposing the petitions on same-sex marriage concluded their arguments and the court granted one hour to the petitioners to wrap up on Thursday.