Thread by @LiveLawIndia

[Same Sex Marriage in India]

#SupremeCourtOfIndia to hear a batch of petitions seeking extension of the right to marry to the LGBTQIA+ citizens.

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Sr Adv NK Kaul: The union has filed its counter yesterday. Would your lordships consider having the matter in April for arguments?

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Kaul: According to us the controversy is narrowed down. We can show that either the statute can be harmoniously construed or in light of Navtej Singh, it has to be recognised. Because your lordships have recognised privacy...

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SG Mehta: I have shown sections in my counter. They have specific provisions for biological men, women.

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Sr Adv KV Vishwanathan: Transgender protection act exists even if centre says we don't recognise such union.

CJI DY Chandrachud: We're not on arguments today but this will help everyone understand.

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Dr AM Singhvi: One is philosophical proposition - Right to love makes us human. It should be extended in equal terms. You can extend it only on equal terms only if your lordships reads down the special marriage act and other acts.

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Singhvi: It has to be read in such a way that terms such as man, woman are done away with.

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Singhvi: We have filed our written submissions on these points.

CJI DY Chandrachud: Mr Kaul tell us what the formulation is.

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Kaul: The words are "a marriage between any two persons may be solemnized..."

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Kaul: "Male has completed age of 21 years and female has completed 18 years"- that is what they rely on.

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CJI DY Chandrachud: So you're saying that Special Marriage Act can be interpreted in a way.

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Kaul places on record the judgments of KS Puttaswamy, Deepika Singh, Navtej Singh Johar.

Kaul: The rights recognised by your lords are far beyond the narrow interpretation given to Special Marriage Act.

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CJI DY Chandrachud: We'll appoint nodal counsels.

Petitioners: Ms Katju is nodal counsel.

SG Mehta: Mr Kanu Agarwal is nodal counsel on our side.

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Vishwanathan: This case is not about transgender statute or HMA, what it is about is 19(1)(a). The right of choosing a partner is the right of expression, right of dignity. It's only a natural right, an assertion of a right. It has implications.

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SG Mehta: So far as right to love, express, freedom of choice is concerned - your lordships have taken care of that in Navtej Singh Johar. Your lordships said that this doesn't mean conferring right of marriage.

Petitioners: That's incorrect.

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SG Mehta: "When we say union, we don't mean union of marriage" - this is what Navtej Singh Johar says.

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SG Mehta: Marriage is not just a contract under Hindu law. It is a contract in Mohammedan law.

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SG Mehta: This is a legislative function. It will then be about adoption. Parliament will have to see psychology of a child who has not been reared by a father and a mother- these are the issues. The parliament will have to debate and take a call on whether in view of our ethos-

CJI DY Chandrachud: Mr SG, the adopted child of a lesbian or a gay couple need not necessarily be a lesbian or gay.

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SG Mehta: This is a matter having grave ramifications on the society as a whole.

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Kaul: The proceedings need to be live streamed. There are people across India interested in this. The Navtej Singh Johar judgement held that such verdicts need to be given as much publicity as possible.

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CJI DY Chandrachud: We will list this for hearing on 18th April. Perhaps, it is a matter important to invoke 145(3) (to refer to Constitution Bench). It is a matter of seminal importance.

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Guruswamy: The legislative intent of the HMA requires that same sex marriage be recognised as S 5 says that the marriage is to be between two Hindus.

SG Mehta: This continuous arguments on stigma...after Navtej Johar judgment there is no stigma.

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CJI DY Chandrachud: The submissions involve the interplay between constitutional rights and specific legislative enactments including SMA, FMA

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CJI DY Chandrachud: We are of the view that it would be appropriate if the issues raised are resolved by the bench of five judges of this court with due regard to A 145(3) of the Constitution. Thus, we direct it to be placed before a constitution bench.

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CJI DY Chandrachud: Petitions shall be listed for final disposal on 18th April 2023.

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Kaul: Constitution bench anyway is live.

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CJI DY Chandrachud: SG states that one counter affidavit is already filed. In the event any supplement is required, that shall be done within a period of three weeks.

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