[Same Sex Marriage] No Violation Of Fundamental Rights, Trying To Create Unnecessary Hype: Centre Opposes Plea For Live Streaming In Delhi High Court

The Centre has opposed the live streaming of proceedings in the case concerning recognition and registration of same-sex marriages in the country before Delhi High Court by arguing that neither the matter involves violation of any fundamental right, nor is it the one relating to national importance.

In the reply to the application seeking live streaming of the proceedings, the Ministry of Law and Justice has argued that the permission for live streaming of the proceedings in the matter may not be granted as it would not serve any purpose.

"A matter needs to be agitated by the party on merits and the court to decide on the basis of law and facts and not soliciting or evoking public attention. The applicant is attempting to create unnecessary hype of the matter being considered by this Court," the reply reads.

The application was filed by three professionals based out of Mumbai and Karnataka, in the petition filed by Abhijit Iyer Mitra seeking registration of marriages of LGBTQIA couples under the Hindu Marriage Act.

Notice in the application was issued in November 2021. It submitted that a substantial number of people (about 7-8% population of country) are interested in the proceedings and outcome of this matter. However, they are unable to witness the proceedings due to space constraint in Courtrooms and limitation of technical platforms like Cisco Webex, which is currently being used by the High Court for hybrid functioning

While referring to the case titled Swapnil Tripathi v. Supreme Court of India regarding live streaming of court proceedings in matters of Constitutional and national importance, the reply prays that the application be dismissed as live streaming can be allowed only after framing of a comprehensive framework by way of rules including for the protection of data.

"The instant matter is not a fit case where live streaming of the proceeding is desirable as it affects the cause of administration of justice. Before allowing live streaming of proceeding appropriate regulatory framework needs to be put in place It is further submitted that the Union of India reserves the right to file a more detailed affidavit in reply to the present application with the leave of this Hon'ble Court, if necessary, at a later stage as the present affidavit has been filed in the limited time available with the Respondent," the reply states.

The reply further states that the majority of Indian population is not very much affected by the present matter and that the applicant is trying to create a "dramatic impression of the proceedings before the Court and to win sympathy".

"Dispensation of justice does not have any bearing on the number of persons who watch the court proceedings or subscribing to the YouTube Channel showing such proceedings The Hon'ble Court does not opt for or seek public appreciation while dealing with matters involving questions of law and facts Social reach of the live streaming cannot be a part of dispensation of justice," the reply adds.

It also argues that the sole intention of the applicant is to create hallucination of public interest and to make the matter sensational.

"Merit of a matter in the court and its outcome does not depend on any melodrama that the applicants proposes to bring in and hence the application is with ulterior motive. The applicant is attempting to utilise the judicial forum to generate public sympathy and to open vista for unwanted attention to the issue. This Hon'ble court does not require larger outreach or any larger audience than what is already available to the proceedings that are undertaken on day to day basis," the reply reads.

It adds "The applicant is trying to turn away from the legal and constitutional infirmities of the writ petition and to attempt wrong interpretation to the concept of open justice propounded by the Hon'ble Supreme Court. The desire of the applicant is to attract global attention to certain cause he believes he has."

About the pleas

The petition filed by Abhijit Iyer Mitra seeks registration of marriages of LGBTQIA couples under the Hindu Marriage Act. It is argued that the language used in the Hindu Marriage Act is gender-neutral, and it doesn't explicitly prohibit the marriages of same sex couples.

In another plea filed by Dr. Kavita Arora, a direction is sought to be issued to the Marriage Officer, South East Delhi, to solemnize her marriage with her partner under the Special Marriage Act. it is her case that the fundamental right to choose one's own partner for marriage under Article 21 of the Constitution extends to same-sex couples as well.

The plea moved by Joydeep Sengupta, an OCI card holder, and his partner Russell Blaine Stephens prays for a declaration from the Court that "a spouse of foreign origin of an Indian Citizen or OCI cardholder is entitled to apply for registration as an OCI under the Citizenship Act regardless of the gender, sex or sexual orientation of the applicant spouse."

The plea reasons that since S. 7A(1)(d) of the Citizenship Act, 1955, does not distinguish between heterosexual, same-sex or queer spouses, a person married to an Overseas Citizen of India, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an OCI card.

The High Court has also issued notices on two related petitions, one seeking recognition of the marriage of a Transgender person and another seeking recognition of marriage of a lesbian couple.

Case Title: ABHIJIT IYER MITRA & ORS. v. UNION OF INDIA & ANR.