Same-Sex marriage case starts on heated note in Supreme Court; Government wants maintainability to be heard first; CJI says he will decide

The hearing before the Supreme Court in the case concerning legality of same-sex marriages began on a heated note on Tuesday with the government saying that it will reexamine whether to participate in the proceedings or not.

This development came about after Chief Justice of India (CJI) DY Chandrachud rebuffed a request by Solicitor General (SG) Tushar Mehta to hear the Central government first on the maintainability of the pleas.

SG Mehta, appearing for the Central government, told the Constitution bench headed by the CJI that the issue raised by the Central government as regards the maintainability of the petitions should be heard first.

He said that he was raising this request since the issue falls within the domain of the parliament.

"We have filed an application raising this preliminary objection and if courts can at all enter this area or can only parliament do it? The debate which is to happen creating or conferring on a socio-legal institution.. should it be done by court or parliament," the SG said.

The CJI, however, said that the bench will hear the petitioners first for sometime to understand the broad issues canvassed.

"The tenability of your submission will depend on the canvas of submissions by the petitioners. We have to see the arguments on merits. It will not be lost in our mind and we will hear you at the subsequent stage.. we need a picture in first 15 to 20 minutes. Let us hear petitioners first. We cannot preempt the submissions of petitioners," the CJI said.

"My submissions are only to see which forum which should be the only constitutional forum which can adjudicate this issue. While raising this preliminary issue we will not address on merits of the case," Mehta said.

"Let us hear the canvas of the case first," the CJI stated.

"Let them reply to our preliminary submissions," the SG insisted.

"I am in charge I will decide... we will hear the petitioners first. I will not allow anyone to dictate how proceedings will happen in this court," CJI Chandrachud shot back.

SG Mehta then said that the government will then consider whether or not it wishes to participate in the case.

"If that is the case then let us take time to see if the government should participate in this hearing," he argued.

"Are you saying the government will not participate in the hearing," asked Justice Sanjay Kishan Kaul.

"None of us know what a farmer in south India thinks or a business man thinks in North India," the SG said.

"We will consider any request apart from the adjournment," the CJI made it clear.

"It does not look nice that the government says it will see whether they will participate in the hearing or not, it is a very important issue," Justice Kaul added.

The Court then proceeded to hear the petitioners.

Eventually, the SG started his arguments.

"I have been able to make CJI angry.... this has been done by my friends in the past.. but I am not very good at it," the SG said on a lighter note.

He then reiterated his request to hear the matter first on maintainability.

"Let us reflect over lunch and then we will say," the CJI replied.

The hearing is in progress.

The Court is hearing a batch of petitions seeking the recognition of same-sex marriages under law, arguing that the right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well.

The Central government has opposed the petitions filed before the Supreme Court by gay couples.

In an affidavit filed before the top court, the Central government said that living together as partners and having sexual relationship by same sex individuals is not comparable to the Indian family unit concept which involves biological man and biological woman with children born out of such wedlock.

The Centre has also filed an application asking the Court to first decide on the maintainability of the petitions.

Similar views have been expressed by Islamic religious body Jamiat-Ulama-I-Hind, which has said that notions like same sex marriage originate from western culture that have radical atheistic worldviews and the same should not be imposed on India.

The National Commission for Protection of Child Rights (NCPCR) has opposed conferral of adoption rights on same-sex couples, relying on a study which shows that such a child gets affected both socially and psychologically.

However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners, and said adoption and succession rights must be conferred on same-sex couples.

Read live updates from the hearing here.