Court Has Not Appointed You Amicus: Gopal Sankaranarayanan Faces Rebuttal From His Own Side For Arguing Beyond Brief Against Same-Sex Marriage Judgment Before Nine-Judge Bench

The last day of the hearing on Wednesday before the nine-judge bench led by Chief Justice DY Chandrachud regarding the scope of Article 39(b) and (c) of the Constitution witnessed an unusual quarrel among the Counsel appearing for the respondents after Senior Advocate Gopal  Sankaranarayanan's submissions were opposed by his own lead Counsel and also the Solicitor General who was arguing from the same side. 

Sankaranarayanan appearing for the state of West Bengal was making submissions saying that the majority judgment in the same-sex marriage case (five judges) is per incuriam and that the present nine-judge bench must reconsider the issue wrongly decided therein.  According to him, the decision of the majority in that case not to grant any relief to the petitioners, despite finding violations of their fundamental rights under Article 14, is contrary to earlier judgments and should be reconsidered by the present bench. 

However, this was opposed not only by Solicitor General Tushar Mehta appearing for the Centre, but also by the lead Counsel for the State of West Bengal, Senior Advocate Rakesh Dwivedi, who had finished his arguments before Sankaranarayanan.

Sankaranarayanan argued that post the same-sex marriage judgment, there is a divergence of opinion in the Supreme Court about reliefs that can be moulded when there is a finding on violation of a fundamental right.  He submitted that though all five judges in the same-sex marriage case agreed that there was discrimination against same-sex/LGBTQIA+ couples and there was violation of Article 14, the majority held that it cannot do anything about it and left it to the state to legislate a mechanism. He said that the minority opinion rightly held that once the court finds discrimination, it is an obligation of the court to mould and provide relief to the petitioner. 

"That judgment, the majority judgment, is very clearly per incuriam because there are three constitution bench judgments which have not been considered by it", Sankaranarayanan submitted. 

Tushar Mehta then got up and objected to such a submission being made from the respondent side. 

"It is necessary for this court to settle this position", Sankaranarayanan said continuing to argue the point.  "All right, we got the point", said CJI Chandrachud.

However, Sankaranarayanan continued to argue that one of the three constitution bench judgments was cited by the petitioner in the same-sex marriage case and yet the majority did not even refer to it. "A five-judges bench cannot take that call of another five judges bench being per incuriam. So that will compulsorily, eventually, have to go to a seven judges bench to decide. I would suggest that your lordships may declare the law, one way or the other. It is very critical", he submitted.  

Justice Rajesh Bindal then asked if that issue is part of the reference to the present nine-judge bench. Sankaranarayanan replied that since it is a question of law, the bench can take it up. The judge then said that all Counsel will have to be heard on that issue, not just Sankaranarayanan. 

Tushar Mehta then said, "My Lord, this is neither centre's submission, this is not State of Maharashtra's submission and Mr. Dwivedi said it is not submission by the State of West Bengal. Really unfair that we have to give rejoinder to somebody who is supposed to be arguing the same point which we are arguing".  

Sankaranarayanan responded by saying that he is not claiming that the submission is based on anyone's instructions.  "As a lawyer assisting the constitutional court, I don't need instructions on a pure question of law", he submitted. 

"The Court has not appointed you Amicus", Senior Advocate Rakesh Dwivedi, who was leading Sankaranarayanan on behalf of West Bengal, said.  

Incidentally, after the judgement was pronounced in the same-sex marriage case, Sankaranarayanan had written a column in a newspaper criticising the majority opinion. 

The nine-judge bench also comprising Justice Hrishikesh Roy, Justice BV Nagarathna, Justice Sudhanshu Dhulia, Justice JB Pardiwala, Justice Manoj Misra, Justice Rajesh Bindal, Justice Satish Chandra Sharma, and Justice AG Masih has concluded the hearing and has reserved its judgment. 

Earlier, during the hearing, CJI Chandrachud had remarked that Article 39(b) and (c), cannot, in today's times, be attributed a definition which gives expression to an unbridled agenda of communism of socialism.

Previously, the Chief Justice had remarked that the directive principles in the Constitution have their foundation in the Gandhian ethos, and that our ethos regards property as something which is held in trust; and that we don't go as far as to adopt the socialistic model which says that there is no private property at all.

Wednesday's hearing before the nine-judge bench can be viewed here.