An activist waves a rainbow flag (LGBT pride flag) in front of the Supreme Court | File Photo: PTI
New Delhi: The Supreme Court on Thursday asked the government to give a response on social benefits that can be given to same-sex couples even without legal recognition of their marital status.
The five-judge Constitution Bench comprising of the Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha is dealing with a batch of petitions pertaining to 'marriage equality rights for LGBTQIA+ community.
CJI DY Chandrachud suggested that there are ministries dedicated to this purpose like social justice and empowerment such as Ministry for Women and Child Development.
The court asked Solicitor General Tushar Mehta to see if there can be separate legislation taken which would protect the rights of same-sex couples.
Solicitor General expressed his acknowledgement that concerns such as having a joint bank account, nomination in insurance, etc are all human concerns and there can be deliberation to find a solution thereto. Solicitor General indicated that he can attempt to undertake this exercise since the suggestion has come from the Bench.
During the hearing, CJI Chandrachud remarked that the government must recognise and secure cohabitor relationships.
During the hearing, Justice Narasimha said, "When the bench says recognition, it may not always be recognition of marriage."
Justice Bhat remarked, "Recognition must be something which gives them benefits."
Justice Kaul opined that social ministries would have possibly studied how to tackle problems that would arise after giving social recognition to the LGBTQIA+ community.
The court also remarked that once it is recognised that there is a right to cohabit, then it is the obligation of the state that all social impact of cohabitation has legal recognition.
The court also noted that there will be social requirements such as banking, insurance, admissions etc where the Centre will have to do something.
Solicitor General Tushar Mehta assured the court that he will assist the court on these issues raised by the court.
These issues were raised by the court when Solicitor General Tushar, appearing for Centre, argued and said, "The right to love, the right to cohabit, the right to project sexual orientation and the right to choose a partner are fundamental rights."
"But there is no fundamental right to seek recognition of that relationship as a marriage," he argued.
Chief Justice of India Chandrachud remarked, "Such issues on the administrative side can be handled by the ministries to find real solutions to these problems and the court can act as facilitators."
The court remarked that the relationship between the court and the government is not really an adversarial relationship.
CJI Chandrachud also said, "The law in the country has gone a long way observing that the country has the Transgender Act with a grand vision."
Justice Bhat mentioned about Vishakha and Domestic Violence Act were also enacted because of some movement.
The hearing remained inconclusive today and will be continued on May 3.
Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQIA+ community to marry any person of their choice.
According to one of the petitions, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said, "The exercise of which ought to be insulated from the disdain of legislative and popular majorities."
The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.
One of the petitions was represented by Senior Advocates Mukul Rohatgi and Saurabh Kirpal briefed by a team of advocates from Karanjawala & Co.