Constitutional court cannot decide as per what young people feel: Supreme Court in same-sex marriage case [Day 7]

The Supreme Court on Wednesday observed that it cannot go by what young people think a constitutional court should do while considering recognition of same-sex marriage in India [Supriyo and anr v. Union of India].A Constitution Bench led by Chief Justice of India (CJI) DY Chandrachud and also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha told petitioners' counsel Senior Advocate Menaka Guruswamy said that the Court can go only by the Constitution and Constitutional morality.The observation was made in response to an argument that the Court should grant legal recognition to same-sex marriage since "youth from all small towns" have urged for the same. ."I speak at a lot of events and especially at small towns; and mostly young people in the small towns want to be married... please do not leave them like how we have been left," Senior Advocate Menaka Guruswamy argued for one of the petitioners..In response, CJI Chandrachud said,"As a Constitutional Court we have an issue. If we go by what young people feel as a Constitutional Court, then we have to go by what others feel...that is why we have to go with what the Constitution is and what Constitutional morality is. If we entertain this argument, then the other side will throw at us what the country wants and we cannot go into that. This is a social institution which is evolving and the Court as a facilitator can ensure that there is some development. If we don't recognize same-sex marriage we do not want you to be with nothing in your hand.".Justice Bhat at this juncture echoed the CJI's sentiment and added,"Just think of what will you get if the discussion moves ahead...there will be some quietus now and your battle for the equality will always remain...But this will not the end of the road.. we are not prejudging it."Both the judges were referring to the fact that the Central government had agreed to constitute a committee headed by the cabinet secretary to consider and examine the suggestions by LGBTQIA community with respect to the issues faced by them when in cohabitory relationships with persons of the same gender..Today was the seventh day of arguments in the batch of pleas seeking legal recognition of same-sex marriage..The Constitution Bench today sought to give an impression to the petitioners that its intention was to not leave them remediless in case the Court decides not to venture into the legislative domain. CJI Chandrachud added,"The conceptual doctrine requires legislative changes and it is completely beyond our domain...So we have to see how we frame the conceptual doctrine. Some things can be done administratively, some things can be changed by subordinate legislation, and the third is recognition of same-sex marriage. So we are saying we will decide this issue as a concept, but the government taking one step forward will be to recognise the cohabitation of same-sex couples, which will be a big step." .Attorney General for India R Venkataramani today cautioned the top court that entering into the arena of recognising same-sex marriage or making changes to the Special Marriage Act for the same would be similar to retrieving something which does not exist in law."Howsoever enlightened we are on the subject and howsoever neutral we are...if we want practical outcomes...how does the Court decide a case like this? The Court should not fundamentally alter the basic text of the statute in this case. Special Marriage Act is only a law in relation to the institution of marriage and does not create the institution of marriage itself. Thus it is not a discriminatory legislation. A hidden provision cannot be retrieved if it was never present, and similarly, there is no question of same-sex relation under the Special Marriage Act...It has to be looked at from this prism...something can be read into a statute only if there was ever an intention to include it therein," he submitted..Appearing for one of the petitioners, Senior Advocate Saurabh Kirpal submitted that the consensus among the (LGBTQIA) community is that they want to get married."It was not correct to say that some don't want marriage...the vast majority of the community members want to be married...I want to be married, others want to be married. Why should we be happy as second class citizens from being third class citizens?" stated Kirpal..Senior Advocate Rakesh Dwivedi, appearing for the State of Madhya Pradesh, argued that the case at hand requires social accommodation and that parliament is in a position to decide how to take the step, when to take the next step and what is the road ahead. "Whole social fabric will break apart if things are thrust upon by this Court. We have to take things slowly in this area and not with speed," urged Dwivedi. .When Dwivedi argued that the dignity of the heterosexual marriages will be at stake if same-sex marriage is treated at par, the CJI quipped, "How is dignity of the heterosexual marriage at stake?"Justice Bhat weighed in asking,"You are saying using the word 'spouse' diminishes the meaning of husband and wife?"To this Dwivedi stated,"We say 'I take you as a husband' and 'I take you as a wife'... how can we say 'I take you as my spouse'?"CJI Chandrachud reacted by saying that this was not the strongest submission. .[Watch the entire hearing here].Read live updates from hearing here. .[Follow our live-coverage of today's hearing].Follow our detailed coverage of Day 1 of the hearing here and here.Follow our detailed coverage of Day 2 of the hearing here and here.Follow our detailed coverage of Day 3 of the hearing here and here.Follow our detailed coverage of Day 4 of the hearing here and here.Follow our detailed coverage of Day 5 of the hearing here and here.Follow our detailed coverage of Day 6 of the hearing here and here.Read about the 20 petitions seeking legalisation of same-sex marriage here.