Former Supreme Court judge Justice Kurian Joseph said that he is completely opposed to the idea of same-sex marriage and that a union of two individuals belonging to the same sex could be at best an association but cannot be included within the contours of marriage.
Justice Joseph along with another retired Supreme Court judge Justice Jasti Chelameswar were speaking at the India Today Conclave South 2023.
When asked to express his views on whether Supreme Court should have heard the same sex marriage case, Justice Joseph said that he was "hundred percent against same sex marriage."
"Marriage is a union between man and woman. Other is an association. But the marriage is for procreation and recreation. The other is an association, a union. I am 100 percent against same sex marriage. It (homosexual relationships) can be an association.. own choice on living together as a friend, intimate friend etc. But the moment you touch concept of marriage, then it is different. It is a basic unit of the society. This affects the roots of the issue," said Justice Joseph.
Marriage is not a fundamental right, he added.
On the jurisdictional aspect of the apex court hearing the matter, Justice Joseph stated that while Supreme Court has jurisdiction to hear the matter, the primary role of the Court is to check the validity of the laws and other executive actions and ascertain whether they are in compliance with the Constitution or not.
"The primary duty of the court is check legality of the legislation or laws in place. Unless that is there, it is difficult for the court to enter this domain," clarified the former judge.
Currently, there is no law either banning or recognising same-sex marriage.
Thus, hearing before the top court for recognition of same-sex marriage has been criticised by many saying that any order passed in this regard by the Court would amount to judiciary entering the arena of legislature.
Justice Chelameswar elaborated on how the lakshman rekha between executive and judiciary is only rhetorical and perceived differently by those when and when not in power.
"When Supreme Court gave a judgment in SR Bommai case, the ones who were not in power said it is a great constitutional judgment. So all this lakshman rekha business is rhetoric. Only lakshman rekha I know is Constitution itself delineating functions to each organ has been done," said Justice Chelameswar.
Justice Chelameswar further stated that when appeals preferred by convicts are pending, then those should be given top priority since those touch upon the personal freedom and liberty of individuals.
On May 15, a constitution bench of the Supreme Court headed by CJI DY Chandrachud had reserved its verdict in a batch of petitions seeking legal recognition of same-sex marriages.