Same-sex marriage: Hybrid hearing on fourth day as two judges join proceedings virtually

The fourth day of hearing in the Supreme Court on Tuesday on a batch of pleas seeking legal sanction for same-sex marriage witnessed two members of the five-judge Constitution bench joining the proceedings virtually.

While Chief Justice of India D Y Chandrachud, Justice Hima Kohli and Justice PS Narasimha sat in the courtroom, Justice SK Kaul and Justice SR Bhat joined the proceedings virtually.

"We will have a hybrid Constitution bench hearing today because Justice Kaul is recovering from a fall. Justice Bhat tested positive (for COVID-19) on Friday. So, they have joined virtually," the CJI said.

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CJI Chandrachud also told Justice Kaul that if he wants, the bench will take a small break in between so that he would be comfortable during the day-long hearing.

The fourth day of hearing in the matter resumed with senior advocate Geeta Luthra, appearing for the petitioners, advancing her submissions.

Justice Bhat said he has noticed that four to five volumes of documents, including the entire judgement in the historic Kesavananda Bharati case that laid down the path-breaking concept of the "basic structure" of the Constitution, have been filed in the matter.

"We have put the entire volume of the Kesavananda Bharati case and everything associated with it on the web page (of the apex court). Who has included this here?" the CJI asked.

The top court had on Monday dedicated to people, including researchers, a web page containing details of the arguments, written submissions and judgment in the historic Kesavananda Bharati case.

Monday was the 50th anniversary of the Kesavananda Bharati verdict.

While hearing arguments in the same-sex marriage matter, the apex court had on April 20 said it may be redefining the "evolving notion of marriage" as the next step after decriminalising consensual homosexual relationships which implicitly recognised that same-sex people could live in a stable marriage-like relationship.

The bench had not agreed to the contention that unlike heterosexuals, same-sex couples cannot take proper care of their children.

It had pondered over whether the relationship between a man and a woman is so fundamental to the Special Marriage Act that substituting them with the term "spouses" will amount to redoing the legislation.

Elaborately referring to its 2018 judgement that decriminalised consensual gay sex, the top court had said it led to a situation where two consenting homosexual adults can live in a marriage-like relationship and the next step could be to validate their relationship as marriage.

Senior advocate K V Viswanathan, appearing for one of the petitioners, had argued that recognition should be given to same-sex marriage and that procreation is not a valid ground to deny such couples the right to marry.

He had said LGBTQIA (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) people are as much qualified to adopt or bring up children as heterosexual couples.

During the hearing on April 19, the apex court had said the state cannot discriminate against an individual based on sexual characteristics over which the person has no control. It had asserted that the Centre has no data to back up its claim that the concept of same-sex marriage is "elitist" or "urban".

The Centre, in one of its affidavits filed in the apex court, termed the petitions a reflection of an "urban elitist" view for social acceptance and said recognition of marriage is essentially a legislative function which the courts should refrain from adjudicating.