Thread by @barandbench

[Same Sex Marriage Hearing]

#SupremeCourtofIndia to begin hearing a batch of 20 petitions seeking to legalise same sex marriage

A five-judge Constitution bench to begin hearing today post 10:45 am

Track this thread for all live updates👇

#samesexmarriage #LGBTQI #gayrights

The list of lawyers who will argue for the petitioners in the case and the time they will take to make submissions #samesexmarriage #SupremeCourtofIndia

Five-Judge constitution bench assembles
#samesexmarriage #SupremeCourtofIndia

Sr Adv Kapil Sibal: Entry 5 of list 3 is the concurrent list Would you be kind enough to hear the states as well. no notice to the states.. since it is in concurrent list.. states should be heard

CJI DY Chandrachud: let us hear the canvas of proceedings and then we will form a… twitter.com/i/web/status/1…

SG Mehta: The court is dealing with creation of a socio legal relationship when it is in concurrent list,, we cannot rule out the possibility of one state doing it and one state not doing it and states not being a party, the petitions will not be maintainable. We have filed an… twitter.com/i/web/status/1…

CJI DY Chandrachud: The tenability of your submission will depend on the canvas of submissions by the petitioners. We have to see the arguments on merits. It will not be lost in our mind and we will hear you at the subsequent stage.. we need a picture in first 15 to 20 minutes.… twitter.com/i/web/status/1…

Sr Adv Kapil Sibal: there are issues of personal laws, adoptions, inheritance, maintenance.

Justice SK Kaul: not that we are not conscious. you are correct.. but let us see the canvas on what is opening up and what is not opening up

SG Mehta: my submissions are only to see which forum which should be the only constitutional forum which can adjudicate this issue. While raising this preliminary issue we will not address on merits of the case

CJI: Let us hear the canvas of the case first..

SG Mehta: let them reply to our preliminary submissions

CJI: I am in charge I will decide... we will hear the petitioners first. I will not allow anyone to dictate how proceedings will happen in this court

SG Mehta: if that is… twitter.com/i/web/status/1…

SG Mehta: none of us know what a farmer in south India thinks or a business man thinks in North India..

CJI: we will consider any request apart from the adjournment.

Justice Kaul: it does not look nice that the govt says it will see whether they will participate in the hearing… twitter.com/i/web/status/1…

Sr Adv Mukul Rohatgi seeks to open the case for petitioners

SG Mehta: we should not be told generations after generations that we did not bring this to your notice. States have to be made party in this case.... we all have partial views and none of us has the view of the nation. twitter.com/i/web/status/1…

Rohatgi: we are persons of the same sex and we have the same rights as like the heterosexual groups of the society this has been held so and we need not reinvent the wheel and only stumbling block was Section 377 and our actions were subject to criminality and now it is gone...… twitter.com/i/web/status/1…

Rohatgi: we cherish and desire the same institution as marriage as it is respected in the society. now under domestic violence act even live in relationships are allowed.. we seek a declaration that we have a right to get married.. that right will be recognized by the state as… twitter.com/i/web/status/1…

CJI: assuming you want a declaration that queer people have a right to marry then what is next.. do you want the special marriage act has it inherent in it...

Rohatgi: nothing has to be struck down and we are in the process of evolution... and the word husband and wife be read… twitter.com/i/web/status/1…

CJI: your analysis is 2 step.. that declaration of marriage an equal right is inherent in the constitution of india and that it is also possible by a special reading of the special marriage act.

Rohatgi: if context requires that man and woman or husband wife is treated as spouse then court can do so by interpretative tool... then comes the question of parliament doing it.... it was held in navtej johar, shayara bano etc that court may not wait for legislative action if… twitter.com/i/web/status/1…

Rohatgi: call them queer, call them gay...people look at the, differently and that is a violation of article 21.. a violation of right to life with dignity and also violation of article 15 when there can be no discrimination based on caste , sex... #samesexmarriage… twitter.com/i/web/status/1…

Rohatgi: Navtej judgment said give full publicity and that people should not look at them with stigma and nothing was done till now. the ministries say they are not supposed to do anything.. if this is the response of legislature then what option than knocking the doors of this… twitter.com/i/web/status/1…

Rohatgi: i had opened the section 377 case here in this very court five years ago and i have a feeling of deja vu. .. #samesexmarriage #SupremeCourtofIndia

Rohatgi: if we have same rights as the heterosexual group the we also have the same right as right to marriage... in 2022 US enacted respect of marriage act to protect validity of same sex marriages.. then came Dipika Singh judgment... queer relationship was dealt with and held… twitter.com/i/web/status/1…

Rohatgi: I request for example.. the petitioner in Supriyo case.. they made in a bond of faith , love, and partnership and want to reach the level of a married couple and want to have a family. they want to live a dignified life and for that Section 377 has been effaced and now… twitter.com/i/web/status/1…

CJI: see in 1996 US passed a law to not recognise same sex marriage and then in 2013 UK passes law to recognise the same sex marriage and then in 2022 you have respect for marriage act... so a negative in US then positive in UK and then in US... so essentially legislature… twitter.com/i/web/status/1…

Justice Kaul: we have to see what is the enforceability of the right to marry

Rohatgi: but in USA there was Obergefell v. Hodges judgment in 2015 which recognised same sex marriage.. #SupremeCourtofIndia

Rohatgi: if we have a fundamental right under Article 14, 15 and 21.. then our full enjoyment of rights includes the right to a dignified life.. once the court and state recognise it then the sitgma goes away... there is no need for parliament since I need not wait as there is… twitter.com/i/web/status/1…

Rohatgi: article 32 is itself a part of fundamental right.

CJI: assuming you are right and that there should be a declaration of right to marry.. then we have to find a legislative void that an action has not taken place.. or look for modalities to implement the declaration in… twitter.com/i/web/status/1…

Rohatgi: simpler way is to read it down and put it in accord with the declaration I am seeking. Constitutional drafting cannot stultify the rights which I am entitled to in 2023... a statute of 1954 cannot come in the way of this #samesexmarriage

Sr Adv KV Viswanathan: there have been judgments where left out categories have been equalised.. The Sikkim Old Settlers association case also held the same recently..in Navtej judgment the word equal platform was used which essentially means that right to marriage is also… twitter.com/i/web/status/1…

CJI: Then we can keep the personal laws out of the equation since all of you can address on special marriage act

Sr Adv Menaka Guruswamy: for Hindu marriage act... it is statutory law and not personal law.. there are elements of inter caste marriage etc which is not part of… twitter.com/i/web/status/1…

CJI: We have to exercise our interpretative power in incremental manner and laws are evolving.. so we have to mindful that court will do it in the way of interpretation and going incrementally we can cover a canvas for the present... confine yourself to the incremental canvas and… twitter.com/i/web/status/1…

Justice Kaul: Mr Rohatgi says special marriage act status itself will give them right to marry and if at all other issues need to be addressed or not needs to be seen... as CJI says sometimes incremental changes in society is a better way as there is always a better time to… twitter.com/i/web/status/1…

CJI: for time being can we not step into personal laws at all and restrict to special marriage act by giving it a gender neutral interpetation and evolve a civil union concept. from navtej till now there has been acceptance of same sex relationships... which is also universities… twitter.com/i/web/status/1…

Guruswamy: bank accounts, life insurance.etc everything is denied. I cannot buy a SCBA insurance for my family even though I am a SCBA member.. rights are protected when you protect your relationships.. day to day business of life is all these things and marriages gives a couple… twitter.com/i/web/status/1…

Guruswamy: I cannot nominate my life partner for life insurance.. and people like me or Mr Kirpal will keep coming to this court to redress individual grievances.. if this is a civil union then correspondence will begin with banks.. insurance companies.. etc... so there are folds… twitter.com/i/web/status/1…

Justice Kaul: in the Puttuswamy case when we upheld privacy we know that there were finer issues and it had to be dealt with time and it was difficult to deal with all the nuances. So suggestion to confine this under special marriage act... would mean not getting into personal… twitter.com/i/web/status/1…

Sr Adv AM Singhvi: on the canvas there are two crucial words here marriage and persons. There are two categories of consequences.. one is minor and major consequences of marriage.. marriage has to have some consequential benefits.. even in this limited canvas the bench must… twitter.com/i/web/status/1…

Singhvi: adoption according to me is crucial.. so if the court holds marriage of same sex is legal but the such a right is an empty shell. One is heterosexual marriage, one is homosexual marriage.. so one criteria is sex based... and if court holds that same sex marriage is… twitter.com/i/web/status/1…

Singhvi: none of us are arguing about personal laws.. then comes issue of state intervention... this court is interpreting the special marriage act.. the notice issue has to be struck down

CJI: even in heterosexual marriage notice for marriage inviting objections is… twitter.com/i/web/status/1…

Justice Kaul: so question is can we define man and woman as person in special marriage act and leave others for another day

CJI DY Chandrachud: so we have expressed what is the area the bench is going to look at

Sr Adv Geeta Luthra: we have challenged the Foreign Marriage… twitter.com/i/web/status/1…

Adv Vrinda Grover: in my petition... Rituparna Borah plea... there was a question of threat from native families

SG Mehta: before the remit is decided. should we be heard? there was no law governing rights and immunity to LGBTQIA+ community... there is no legal lacuna in… twitter.com/i/web/status/1…

SG: please see the definitions in the transgender act.. there is definition of transgender etc.. question is not granting a socio legal sanction etc... it has been clearly said no one shall discriminate against the transgender persons including unfair treatment, denial of… twitter.com/i/web/status/1…

Hindus and Muslims will be affected and that is why states should be heard: SG Mehta

Jusitce Kaul: we are not going into the personal laws and now you want us to get into it, why ? how can you ask us to decide it.. we cannot be compelled to hear everything

SG: Then we are short… twitter.com/i/web/status/1…

CJI: The notion of biological man and biological woman is absolute

SG: That is not a notion

CJI: it is not a question of genitals.. the very notion of Special marriage act having man and woman is not restricted to the genitals..

SG: it is restricted to the genitals i did not… twitter.com/i/web/status/1…

SG: there are several acts which will be made redundant if the court holds otherwise.. imagine a working structure of woman being examined under crpc and a man may say then that it is a notion that i am a man but i am a woman

Justice Kaul: there is always change in the society… twitter.com/i/web/status/1…

CJI: Do not underestimate the submissions that you are making and we will point this to Mr Rohatgi

Justice Kaul: they came with a broader canvas.. but we are restricting it and we are not going into personal laws etc.. so the contours of argument has to be limited to the extent… twitter.com/i/web/status/1…

SG: Today you are saying personal laws are not got into but the earlier judgment opened this window.. so again this would open a window later

CJI: But we cannot bind our future generations long after we are gone and turned to dust.. #samesexmarriage

SG: We urge you to decide our preliminary issue first and issue notice to the states

CJI: Let us reflect over lunch and then we will say #samesexmarriage

Sr Adv Rakesh Dwivedi: the first question is in navtej there was no absolute equality granted along with the heterosexuals... one relation has existed since time immemorial and it is the reason for human race and without this human race will not exist.. love and affection is not… twitter.com/i/web/status/1…

Dwivedi: same sex union has always existed.. but they were not given equality at part with heterosexual couples.. they were never treated equally... only if the court decides that they are equal..then and only then even special marriage act can be considered. #samesexmarriage

Dwivedi: marriage among heterosexuals is not a gift of law but it only regulated which always existed... even if they are held equal making it for all the laws is not possible.. when we speak of man of 21 and woman of 18.. how does question of man and woman does not arise… twitter.com/i/web/status/1…

Justice Kaul: you are basically telling us we cannot do this

Dwivedi: states are essential party and they must be heard

CJI: We will take a call

Sibal for Jamiat ulema i Hind: we believe in the autonomy of an individual... and we need to celebrate the union of two people.. so now if marriage is allowed.. it can be allowed.. but now if marriage breaks who will take care of the child.. who will be the father... who will be… twitter.com/i/web/status/1…

CJI: We would like you to assist us in the later part of the hearing as an officer of the court Mr Sibal

Sibal: yes milord. there will be ghettoization also if it is heard piecemeal

CJI: We will come back after lunch and hear Mr Rohatgi

CJI: All of the petitioners can finish by thursday morning and afternoon the other side can start

SG Mehta: so my application is rejected?

Bench rises.. #samesexmarriage

Bench to resume hearing post 2 pm
#Supremecourtofindia #samesexmarriage

The post lunch session of the Constitution Bench hearing in #Samsexmarriage case begins
#SupremeCourtofIndia

Sr Adv Mukul Rohatgi: we have a fundamental right to get married, have it registered like our heterogenous brethren of our society..if we are correct then rights flow from that status of marriage.. like income tax provisions, etc apart from status of society #samesexmarriage

Rohatgi: I was amazed to hear that we are not equals and we need to be equal to stigmatised lot and that is why court should step in and that is why even after 377 judgment we are here.. that is why a state is telling us here that we are not equals #samesexmarriage

Rohatgi: it is being said how are we equal. Well we became equal in 1950s. please see the preamble. Article 14, 15, 19, 21 flow or are adjuncts of the preamble...

#samesexmarriage

Rohatgi: justice, liberty, equality will promote fraternity which promotes brotherhood assuring dignity of an individual and this dignity sits in article 21 after the Puttuswamy judgment #samesexmarriage

CJI: they are two words in the preamble "and to secure to all of its citizens" and "to promote among them all" which have not been dealt much.. first is individual based and the latter is on the society #samesexmarriage

Rohatgi: Pluralistic society understands diversity and that was the concept

CJI DY Chandrachud: justice to  each of us, liberty to each of us, equality to each of us and fraternity to all of us

Justice PS Narasimha: here that means dignity is connected to individual and it… twitter.com/i/web/status/1…

SG Mehta: unconnected to the case but artificial intelligence has recorded Mr Rohatgi's submission as Mr Singhvis

Rohatgi: please correct it else I will get more briefs

Justice Kaul: I do not think either of you would want more briefs

#samesexmarriage

Rohatgi: when Hindu window remarriage was allowed even then society did not accept it..sometimes parliament acts with less alacrity or more alacrity.. here we have moved ahead... the only stumbling block was 377 and then the mind set.. 377 is gone and rest all that is being… twitter.com/i/web/status/1…

Rohatgi: After Navtej we have seen how people from our community is perceived.. stigma is still there... I read an article...

CJI: Mr Vivek Katju in Indian Express?

Rohatgi: Yes i have read. I will pass it on to the bench #samesexmarriage

Rohatgi: secularism was held to be a part of the basic structure in SR Bommai case..Para 1 of TMA Pai... 11 judge bench was headed by the then CJI BN Kirpal and he noted India is the land of diversity.... all of this means that people who constitute the unity of nation must move… twitter.com/i/web/status/1…

CJI: In Ayodhya also we did it. we held that the 1993 act was also a part of the basic structure. #samesexmarriage

CJI: Justice Kaul is also on the electronic mode

Adv Arundhati Katju mentions that the bench is perusing almost 25,000 pages on the electronic format

#samesexmarriage

Justice Kaul: CJI Chandrachud is ensuring I learn all this before I demit office

CJI Chandrachud: my brother has been a real sport and has learnt all this last evening

Justice Kaul: on a lighter note this does not have the pleasure of throwing the files down #samesexmarriage

Sr Adv Rohatgi takes the bench through a series of judgments #samesexmarriage

Rohatgi: if you do not have full enjoyment of life you will not have dignity. we are facing the disdain of majority..what about the stigma in place... #samesexmarriage

Rohatgi: we should not be discriminated because LGBTQ is 10,000 and the majority is 10 crores. that is the core of our submission. other side says we are not equals as if we are in 1920s or 1930s and that we have to be happy with just the 377 judgment #samesexmarriage

Rohatgi: 377 means live the way you want to live in your house but if you come out then face disdain of majority... the decision of the court has the same weight as that of the parliament. #samesexmarriage

Rohatgi: it is not an urban elitist concept... it is innate and this is how people are born and that is how Nero was born

Justice Ravindra Bhat: let us not model ourselves on Nero there are others too

Rohatgi: yes agreed.. not Nero #samesexmarriage

Rohatgi: my action may not be criminalized but I am being stigmatized. I seek a declaration of my right under Article 21 and procreation in todays scenario includes IVF, Surrogacy, adoption etc #samesexmarriage

Justice Bhat: what you speak here and what you speak at home will be different. that is how privacy works..

Rohatgi: i am not reinventing the wheel.. i am only putting together the rights granted to me since marriage was not in question in earlier hearings #samesexmarriage

CJI: on one hand LGBTQ community is entitled to say that they can make their own choices and live as they want and then society cannot say that you continue to live but we will not recognize you and deprive you benefit of conventional social institutions so it is not proper to… twitter.com/i/web/status/1…

Rohatgi: yes not good to say that leave you alone without section 377 and now be happy

CJI: Yes each of us are social animals and so state cannot say that we will leave you alone but state cannot say that benefits of social institutions will be deprived and there is positive… twitter.com/i/web/status/1…

Rohatgi referring to a judgment: some of the sentences written here are very long ones...

Justice Kaul: your (Mr Rohatgi's) later father, [Justice Awadh Behari Rohatgi] used to write very short sentences.. Lord Denning style

Rohatgi: Yes milord

#samesexmarriage twitter.com/i/web/status/1…

Rohatgi: Lgbtq community possess the same human right as a heterosexual person and thus they have a right to marry and cannot be said to be left alone.. thus we request this court to grant us this relief #samesexmarriage

Rohatgi: no mandamus lies to the parliament. In Navtej judgment it was said that full media publicity should be given to the verdict but nothing happened. this is disdain of the direction of this court. #samesexmarriage

Rohatgi: the court held that denying right to express sexual orientation to a LGBTQI person it is denying right to citizenship... here also is same.. it is like ok 377 gone but you remain in your closet... and dont come out.. privacy and dignity goes hand in hand ..dignity is… twitter.com/i/web/status/1…

Rohatgi: let me continue for half an hour tomorrow milord

Bench discusses #samesexmarriage

Day 1 of the hearing in #samesexmarriage case comes to an end.

Constitution bench to re-assemble tomorrow

Bench rises for the day

#SupremeCourtofIndia