Thread by @OfficialSauravD

#StoryAlert 🚨

On Apr 18, union govt's lawyer Tushar Mehta stood before the Supreme Court bench hearing the #SameSexMarriage case and requested it to refrain from hearing the case. "Leave it to parliament," he said.

But why? A thread.🧵
article-14.com/post/marriage-…

Centre says-
1. Court cannot create or recognize marriage by judicial interpretation.
2. 'Urban-Elitist' concept.
3. Majority of other countries have recognised same-sex marriage via legislation.
4. Debate in society, nation must. Only parliament can decide.

I find-
1. Courts can, & have, changed laws via judicial interpretation
2. Not an "urban-elitist" concept
3. 23 of 34 countries where same-sex marriage recognised did so via legislation, but 10, including US, did so via court judgements
4. Court can decide if legislative lethargy

Our analysis of 5 SC judgements over past 30 yrs revealed that d court has changed/enabled a change in law when a legal vacuum was evident or fundamental right violated, mostly via guidelines or installing a new system as an interim measure, pushing Parliament to frame a new law.

These 5 SC cases have filled legislative vacuum in their times.
They are-

1. Appointment of Election Commissioners- 2023.
2. Triple Talaq- 2017.
3. Sexual Harassment guidelines- 1997.
4. Right to Privacy- 2017.
5. Forest case- 1995-continues till date.

article-14.com/post/marriage-…

You can read more about these cases in the piece.
However, I'm sharing a few excerpts from some of these judgements that have a bearing on the same-sex marriage case.

"There is no strict demarcation or separation of powers in India. The theory that the courts cannot or do not make laws is a myth which has been exploded a long while ago," most recent observation by 5-judge constitution bench in the 2023 #ElectionCommissioner Appointment case.

In the 1992 Vishaka case that sought protection of women from sexual harassment at workplaces, SC in 1997 said-

"The primary responsibility for ensuring such safety & dignity through suitable legislation, and d creation of a mechanism for its enforcement, is of the legislature..

and d executive. When however instances of sexual harassm resulting in violation of fundamental rights of women workers.. r brought before us.., an effective redressal requires that some guidelines should be laid down for d protection of these rights to fill d legislative vacuum"

In the Right to Privacy judgement of 2017, the majority judgement of the 9-judge constitution bench said-

“Constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.”

@ProfFMustafa says: “The government, which is a reflection of d society, is representing social morality. Indian society being religious, traditional & feudal is not ready for d legal recognition of same-sex marriage. So d govt in a way is right, because society is not there yet”

But he adds that this argument did not restrict the court from granting legal recognition to same-sex marriage. "If a court is committed to civil liberties, it may go ahead."

They have quite a scope to give creative, innovative, liberal interpretations,” said @ProfFMustafa.

@TnagarTornado says that laws can offend the fundamental right to equality clause in Article 14 by either granting a benefit to a class of people that do not deserve it, or by granting a benefit to only some types of people, but denying to other types of people.

“In the first category, courts only need to strike down the law to ensure everyone is treated equally,” said Swaroop.

“But in the second category of cases, court has to positively grant a benefit to a class of persons.”
This is where it becomes legally contentious.

@TnagarTornado says there r some "stray observations" of SC that say they cannot grant benefits to a class of persons if a law originally did not grant those benefits to them. (For eg: marriage rights under Special Marriage Act or personal laws to LGBT+ persons)

Swaroop said the govt was trying to argue on these lines—that the courts cannot correct a law that is "underinclusive".

Though there r some "stray observations" by SC also saying it cannot do this, @TnagarTornado adds "there is no positive judgment that says it cannot be done”.

More on this topic in the piece.

Do read, retweet, and share your thoughts.

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