Rohatgi: And since it is based on an implementation of my fundamental rights, I can come to the court and the court need not wait for the legislature. There may not be a mandamus to legislature. Legislature can or cannot do.
Rohatgi: If the rights have to be identical, then i must get the recognition of my union the same way as the recognition of union of two others.
Justice Narasimha: So we're at that stage. So how do we go about this?
Rohatgi: If as distinct from UK and other places, we have a fundamental right to be treated as identical to others, then our full enjoyment of rights includes right of dignified life, which includes marriage
Justice Narasimha: So there were legislations which prohibited same sex marriages. But Obergefell struck down that. Now the wheel has turned a full circle - where you have a complete federal cover.
Rohatgi: I understand the drift - there they acted. Here, in 2015, as far as Obergefell is concerned, it recognised the right of same sex marriage and legalised the same. That was a judicial action.
Justice SK Kaul: What is the right of marriage? And what is the constitutionality of an enforcement of right of marriage? Because what they're saying is that you can't tell that your marriage will be recognised.
CJI DY Chandrachud: In the absence of legislation, how does the court go about it? Is there any indication in our legislation or legislative space where court can act?
CJI DY Chandrachud: What we therefore have to consider is that these matters- even in the US, UK, the legislature has intervened- earlier by outlawing and later by recognising.
CJI DY Chandrachud: Then comes 2013, Windsor and then 2013 in the UK, the Act conferring upon same sex couples right to marry. And then 2022, US Respect for marriage act.
CJI DY Chandrachud: We also have to see this. (Refers to a chart)- If you see the US, Sept 1996, federal govt enacts the defence of marriage act which says federal law shall not recognise same sex marriage.