Parliament has power; how far can courts go into it: SC

The Supreme Court on Tuesday said Parliament undisputedly has the legislative power over issues raised in pleas seeking legal sanction for same-sex marriage and pondered over the “interstices” left open for it to exercise its power and till what extent.
A five-judge Constitution bench headed by Chief Justice of India D.Y. Chandrachud was faced with several consequential legal questions, such as adoption, succession, intestacy and laws governing pension and gratuity where a once legally-acknowledged spouse is the beneficiary, if it decides to legalise same-sex marriage.
The bench observed that if same-sex marriage is allowed, then the judicial interpretation, keeping in mind the consequential aspects, will not remain confined to the Special Marriage Act, 1954 and personal laws will also come into play.
“Now, the question which we really therefore have to pose is, if this is a power which is conferred specifically on Parliament, where does the court really exercise its jurisdiction. Which are those interstices which are left open for the court to exercise its powers,” the bench, also comprising Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, said. Observing that there is no denying that there is a link between the 1954 Act and the personal laws of various religions, the bench said, “Therefore, you cannot confine to the Special Marriage Act and it has to go beyond it.”
On the fourth day of the hearing, senior advocate Saurabh Kirpal, who appeared in the court on behalf of the petitioners, vehemently pleaded for legal validation of same-sex marriage, saying seven per cent of the country’s GDP will be affected if the LGBTQIA++ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally) are denied this fundamental right.
He said gay and lesbian people are also like heterosexuals and if their marriage is not registered here, they will leave for another country for better rights, and contended that it will be a “gay brain-drain”.
The bench referred to section 21A of the Special Marriage Act, which provides certain reliefs to Hindus, Buddhists, Sikhs or Jains in property and other related issues if they solemnise their marriages under the law, and said it is very specific and if the court has to make some provisions of reading it, it has to be consistent with other provisions.
The bench told senior advocate Menaka Guruswamy, who represented the petitioners, that suppose the top court substitutes the terms man and woman with “spouse” or “person” in section 4 of the Act, which deals with conditions relating to solemnisation of special marriages, the question will be can it “stop at that today”.
“Dr Guruswamy, the point really is that the fact that the canvas which is covered by these petitions also falls or does fall within the domain of Parliament is undisputed,” the CJI said, adding, “You cannot dispute the fact that Parliament has the legislative power over the canvas which is covered by these petitions, which is Entry 5 of the concurrent list,” the bench said. Guruswamy contended that the Centre cannot come to the court and argue that this a matter for Parliament as when the fundamental rights of an individual are violated, he or she has the right to approach the court.
Referring to the 1997 Vishaka verdict that laid down the guidelines to handle cases of sexual harassment at workplace, the CJI said it was a classic example where the court laid down the framework pending the legislature coming up with a law in this regard. “The test really is this–how far does the court go,” the bench said.
Referring to the submissions advanced by the petitioners, it said there is no doubt that adoption, succession and intestacy are matters governed by personal laws even today.
“My lords have been that north star, not just for LGBTQ rights, my lords have been the north star in many facets of fundamental rights pre the legislature walking the talk,” Guruswamy said.
She said the petitioners are not asking for anything special and are only asking for a workable interpretation of the Special Marriage Act. “We are also part of ‘we the people’ and we are citizens of this country. The basic structure (of the Constitution) also belongs to us,” Guruswamy said.
The bench said the petitioners are right in asserting that marriage itself is a bouquet of rights and though they have identified three aspects — gratuity, provident fund and pension — “actually, it does not stop at that at all”.