India’s Supreme Court to Hear the “Important” Case Of Same-Sex Marriage

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The Supreme Court of India, the Country’s highest, will start on April 18 to hear a Case on the controversial question of whether or not to legalize same-sex marriages in India.

Following a hearing on Monday, the Supreme Court led by Chief Justice of India DY Chandrachud determined the Case was important enough to warrant the consideration of a larger panel of five-Judges on a Constitutional bench of the Supreme Court of India per Article 145(3) of India’s Constitution that mandates questions requiring constitutional interpretation be referred to such a Judicial bench.

“This is a matter important enough to invoke Article 145(3) of the Constitution and refer it to the five-Judge Constitutional Bench. It is a seminal issue.”

The Court said, according to The Times of India.

“ Having regard to the broader context of the petitions before this Court and the inter-relation between statutory regime and constitutional rights, it is appropriate that the issues raised are resolved by a five-judge bench having due regard to Article 145(3)”

Like several other countries outside the West, the Government of India is strongly opposed to same-sex marriage, otherwise oft-called “gay marriage.”

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Much as the country decriminalized gay sex, petitioners in the case before the Supreme Court argue the prohibition against the “corollary” right to same-sex marriage limits the full enjoyment by gay people of their presently-recognized rights to love and dignity.


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According to Solicitor General Tushar Mehta, the lawyer representing India’s Government in the case, the question of whether or not to legalize gay marriages should be left to the Indian Parliament to determine and not the Supreme Court of India.

This is because, according to the Senior Counsel, allowing gay marriages has the potential of altering how “our society” develops.

Mr. Tusha Mehta noted that allowing these marriages would upend the legal regime by introducing fresh questions to legal situations revolving around marriage such as adoption.

“ When questions of granting legal sanction to marriage are concerned, it is essentially a function of the legislature. The moment same-sex marriage is recognized, question of adoption would come. Parliament has to debate the psychological impact on a child who has parents of the same sex either two men or two women, juxtaposed to a child groomed by a heterosexual couple.” He argued.

India is not alone among countries in the Common Wealth currently debating the question of homosexuality.

Uganda’s Parliament is currently out soliciting views on a law that seeks to criminalize gay sex and its Constitution like India’s categorically prohibits same-sex marriage.

The Supreme Court of India is often cited by lawyers in the Commonwealth for its groundbreaking judgments on human rights issues.

For example, the legal principle that a Constitution has a “basic structure” that is beyond the amendment powers of a Parliament that was enunciated by the Supreme Court of India in 1973 was rested upon by Ugandan lawyers in arguing a case that sought to prevent Parliamentary removal of age limits in the Constitution of Uganda and therefore the Presidency of Yoweri Museveni.  

 



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