The five-judge Constitution Bench hearing the marriage equality petitions has decided to examine the right to marriage only under the Special Marriage Act, 1954, and will not go into personal laws. On the first day of hearing on Tuesday, April 18, the bench comprising Chief Justice of India (CJI) DY Chandrachud, Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha said it was better to proceed “incrementally’ than to deal with all the laws together.
“Sometimes incremental changes in issues of societal ramifications are better. There is time for everything. Therefore, what was being suggested was, can we for the time being confine only to limited issue [sic], and not step into personal law issues,” Justice Kaul observed.
During the hearing, Solicitor General Tushar Mehta, appearing for the Union government, had stressed that the maintainability of the petitions should be decided on first, as marriage is a matter in the Concurrent list and hence all states must be made party to the petition. To this, the bench replied that it will not get into personal laws for the time being and will only stick to the provisions of the SMA.
The batch of petitions primarily demand marriage equality for LGBTQIA+ persons, but also raise larger questions about the institution of marriage itself and how Indian laws pertaining to marriage interfere with the fundamental rights and personal liberties of individuals as guaranteed by the Constitution. On the first day of hearing, submissions were made by senior advocate Mukul Rohatgi, Menaka Guruswamy, SG Mehta, and others.