Same Sex Marriage | Can Society Not Draw Few Red Lines to Say Thus Far & No Further? J Sai Deepak Argues in SC
In a significant development in the ongoing proceedings before the Constitutional Bench of the Supreme Court regarding the recognition of same-sex marriage, Advocate J. Sai Deepak presented compelling arguments representing a women’s forum that opposes the batch of pleas seeking such recognition. His insightful remarks shed light on the nuanced legal and societal considerations at play.
Addressing the Bench, J Sai Deepak began by highlighting the distinction between fetters and powers, asserting, “The central position effectively placed before my lords is with respect to the distinction between fetters and powers.”
He emphasized the need to discern whether the matter at hand falls within prohibited areas or areas suitable for the court’s adjudication. This distinction forms the crux of the central issue in question.
J Sai Deepak then delved into the question of legislative competence and its connection to the separation of powers. However, he further advanced the argument by focusing on the society’s right of agency in participating in discussions on changing heteronormative attitudes. He expressed, “This is not a question of separation of territories between different organs of the state but fundamentally hinges on the right of the agency of the society to participate in this particular discussion.”
Stressing the importance of social conservatism, J Sai Deepak questioned whether the constitution allows for the society to draw certain red lines to limit the scope of societal change. He noted, “Does it mean society does not have the right to draw a few red lines to basically say thus far and no further? That is the central question.”
As a representative of a women’s organization, Deepak argued against the individualization of marriage, stating, “The nature of the prayers raised in the petition has the consequence of ‘individualizing’ a socio-centric institution such as marriage.” He cautioned against undermining the social character of marriage and demeaning its significance by reducing it to a mere transaction between consenting individuals.
Highlighting the issue of legislative prerogative, J Sai Deepak pointed out the significance of Article 111 of the Constitution, which pertains to the President’s power to recommend amendments to legislation. He emphasized the need for societal participation and deliberation when addressing matters that aim to reshape the heteronormative attitudes embedded in legislations.
J Sai Deepak further drew attention to the relevance of Section 21 of the Special Marriage Act, noting its direct impact on personal laws. He argued that the debate surrounding the Act should involve the broader society, rather than being limited to those who adhere to the Act’s values.