Thread by @LiveLawIndia

[Marriage Equality Petitions in the #SupremeCourt]

A constitution bench of the #SupremeCourt will begin hearing the batch of petitions seeking legal recognition for same-sex marriage in India.

Follow this thread for live updates.

#LGTBQIA #SupremeCourtofIndia #SameSexMarriage

The bench hearing the petitions comprises Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha.

#LGBTQIA #SameSexMarriage #SupremeCourt #SupremeCourtofIndia

SG Mehta: The subject your lordships are dealing with is the creation of a socio-legal relationship of marriage which is the domain of the competent legislature.

#SameSexMarriage #SupremeCourt #LGBTQIA

SG Mehta: When the subject is in the concurrent list, we cannot rule out the possibility of one state agreeing to it and another state being against it. In case of states not being joined, the petitions wouldn't be maintainable.

#SameSexMarriage #SupremeCourt #LGBTQIA

SG Mehta: The notice was issued in January and we couldn't raise an issue about maintainablity. We also have to see what will be the repercussions if the court takes call on this.

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SG Mehta: The debate which is to happen to conferring or creation of socio-legal institution - should that be the forum of this court or parliament?

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CJI DY Chandrachud: The nature of your preliminary objection depends upon the canvas they open up. Let us see what canvas they're opening.

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CJI DY Chandrachud: Second, what is really in the nature of preliminary objection you seek to raise is your response to merits. We'll hear you on that.

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CJI DY Chandrachud: We'll hear you on that on subsequent stage when you're responding to that. Once we have a picture on what is the canvas they're arguing on, we may tell them what is the canvas we want them to argue on.

#SameSexMarriage #SupremeCourt #LGBTQIA

CJI DY Chandrachud: But that's after we hear them.

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Sr Adv Kapil Sibal: There are also issues of personal law- adoption, succession, several issues that arise and that is the canvas your lordships should be looking at.

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Sibal: Whether you're lordships will like to go into that or not, we'll know

SG Mehta: I'm making it very clear that my preliminary objections are not objections on merits. These are only for deciding which forum would adjudicate upon this.

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CJI DY Chandrachud: We'll reserve for your preliminary objections after they have opened.

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CJI DY Chandrachud: I'm sorry Mr Solicitor, we are in charge. We'll hear you later.

SG Mehta: This is a matter of a sensitive nature. Give me some time we may consider what would be the stand of the government.

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SG Mehta: Give me time to consider to what extent government would want to participate.

CJI DY Chandrachud: Anything but an adjournment.

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Justice SK Kaul: It's a very important question...

SG Mehta: This is not an issue which can be debated by 5 individuals on that side, 5 on this side, 5 brilliant minds on the bench. None of know of views of farmer in South India, business man in North...

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CJI DY Chandrachud: We'll allow them to open the case.

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Sr Adv Mukul Rohatgi: Lordships may hear any state but just as a preface- anything SG has said doesn't hinge on maintainablity of a petition under 32 by an individual who complaints that his fundamental rights are being restricted. I have a right to approach this court.

#LGBTQIA

Rohatgi: I have a right to be heard- my grievance may be right or wrong- your lordships will decide upon that.

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SG Mehta: I should not be told after generations after generations that we did not bring this to your lordships notice. In SMA as well as HMA, every state has specific rules. That is a reason to call all states. None of us represent views of nature

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Rohatgi: We are persons who are of the same sex. We have, acc to us, the same rights under constitution as heterosexual group of society. Your lordships have held that. The only stumbling block on our equal rights was 377.

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Rohatgi: Criminality is now gone. The unnatural part or order of nature is gone from our statute. So therefore our rights are equal.

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Rohatgi: If our rights are identical as held by the State, then we want to enjoy the full extent of our rights under 14,15,19,and 21.

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Rohatgi: We want privacy in our homes and not face stigma in public places. So we desire same institution between two people as is available to others- the concept of marriage and family. Because marriage and family is respected in our society.

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Rohatgi: There is no reason why once our rights are identical, we don't get this. That has been the development in US and other states. We want a declaration that we have a right to marry, that right will be recognised by the State & will be registered under Special Marriage Act

Rohatgi: Once that happens, society will accept us. The stigma will only go once the state recognises it. That will be full and final assimilation.

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CJI DY Chandrachud: Assuming you seek a declaration of the court that people belonging to queer community have a right to marry, what is the next step?

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CJI DY Chandrachud: Are you saying that Special Marriage Act already recognises that right in it? An interpretative device?

Rohatgi: I don't want it to be quashed. Provisions of SMA made 70 years ago, there have been evolutions- live in etc have come in.

#LGBTQIA

Rohatgi: I want to say that your lordships may broadly read "spouse" in place of "man and woman" or "husband and wife"

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Rohatgi: Concept of marriage has changed over last 100 years. Earlier we had child marriages, temporary marriages, a person could marry any number of times - that also changed. There was a lot of protest to the new avatar of Hindu marriage act.

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Rohatgi: Constitution is a living document. The preamble says "equality, fraternity".

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CJI DY Chandrachud: So your analysis is two step- one, declaration of marriage as a fundamental right has been implicit in the constitutional guarantee of 14,19,21.

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CJI DY Chandrachud: And then step two, this can also find recognition with an appropriate reading to Special Marriage Act. So you're not going into broader issue of personal laws.

Rohatgi: No, I'm not.

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Rohatgi: Hindu marriage act, yes but main point is Special Marriage Act.

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Rohatgi: You can't keep changing definitions, the law. So you have "unless the context otherwise requires".

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Rohatgi: In Navtej, Sayara Bano, Puttaswamy- it was held that the court need not wait for legislative interference and if it is bought to the court's notice that my fundamental rights are being restricted, the court's duty is to act.

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Rohatgi: We are getting older. We also want respectability of marriage. Today what is the position? These people- call them queer, gay- if they go to places, people look at them. That is a restriction, infringement of my right under A 21

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Rohatgi: Your lordships have accepted the definition in Anuj Garg- which has accepted sex to mean sexual orientation. Sex doesn't only mean male or female.

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Rohatgi: Also in NALSA, while dealing with transgenders (persons), there are passages after passages, that if you have to give them equality, the equality must be reflected positively.

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Rohatgi: NALSA said give them reservations years ago- nothing is done. Natvej Singh Johar said give this full publicity and today I read in Indian Express - nothing is done. Three ministries today say we haven't done it, you're not supposed to do it.

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Rohatgi: I have a sense of deja vu. Years ago, i opened the case in decriminalizing 377...if we have the same rights as heterosexual groups, we have the same right to marry too.

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Rohatgi: If 14,19,21 are inalienable parts of the basic structure - they cannot be tinkered or removed by anyone- how can we infringe?

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Rohatgi takes the court through the history of same sex marriages across the globe.

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Rohatgi: The definition of marriage in Obergefell v Hodges is classic. It was used in 2015 also.

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Rohatgi: See the definition after 2019, after the society has evolved- "the legal union of a couple".

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Rohatgi: Read the definition of same sex in 1019- "ceremonial unit of two people of the same sex whether man or woman". So government of India is following an antiquated edition of Black's dictionary. If you're following the same dictionary, follow the latest one.

#SameSex

Rohatgi: You can't follow a version which is 50 years old. I request, for example two petitioner in first petition- who are they? Two individuals who have a bond of faith, love- they want to reach the status of a married couple and have a family.

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Rohatgi: For them, your lordships have removed one block - that they can't go to jail. Second step has to be affirmative which is the recognition of the right to marriage.

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Rohatgi: Society is resistant to change. Humans are resistant to change. So society follows what the law is and what the law is what is said in the parliament or this court.

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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.

#SameSexMarriage #SupremeCourt #LGBTQIA

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.

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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.

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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?

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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.

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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.

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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.

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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

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.

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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.

#SameSexMarriage #SupremeCourt #LGBTQIA

Rohatgi: If this court has said something the State has to respect it and once State respects it, stigma will go.

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Rohatgi: If I have a right, it must be examined by the court, and be guaranteed to me. 32 itself is a part of fundamental right.

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Rohatgi: The law can't remain static. Law moves, society moves. Court will act when it is called upon to act. It will act whatever it can within its judicial parameters.

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CJI DY Chandrachud: Assuming that you're right that you have a right to marry, there are two courses of actions acc to you- either the court then finds a legislative void; or locate the modalities for implementing that declaration in existing law.

Rohatgi: Yes.

Rohatgi: Because of our history of Vishakha, Puttaswamy- all I'm requesting is second step. The second step to be implemented is not by Vishakha rules but by virtue of the law already available by process of legislative interpretation.

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Rohatgi: The legislative drafting which was done 50-70 years ago cannot stop what I'm constitutionally entitled to get.

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Sr Adv KV Vishwanathan: In Sikkim Old Settlers cases, where some people were left out of some benefits, your lordships said that striking down will deny everyone benefits. So i will now equalise the rights.

#SameSexMarriage #SupremeCourt #LGBTQIA

Vishwanathan: The other is the south africa model where they say that the common law and the statutory understanding is unconstitutional, we strike it down, but we suspend the declaration.

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CJI DY Chandrachud: Now that we've understood broadly the canvas of the matter, we can at this stage, steer clear of personal law. If we steer clear of personal law, perhaps that is one possible option...

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CJI DY Chandrachud: It may not be necessary for the court to then get into personal law.

Sr Adv Menaka Guruswamy: There are some concerns about Hindu Marriage Act.

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Guruswamy: The Hindu Marriage Act is not an issue necessarily of personal law. It is a statutory law. We will demonstrate that. The terms of the constitution, the reforms have always be in statutory law.

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Guruswamy: The origin of HMA, the Hindu code, did something that was not committed in sacramental Hindu Law, which is, inter caste marriage, Sagothra marriage, inheritance...

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CJI DY Chandrachud: There may be some amount of sage wisdom in also going about our tasks in incremental manner. Because otherwise do we then confine ourselves only to HMA? What about the Parsis, Jews, Muslims- there are a lot of communities

#SameSexMarriage #SupremeCourt #LGBTQ

CJI DY Chandrachud: The constitution itself and the law itself is evolving so the court has to be mindful that we're moving by process of interpretation.

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CJI DY Chandrachud: Perhaps, going incrementally, covering a canvas for the present, confine yourself to this canvas and then allow parliament's perception to evolve with time. Because parliament is also responding to the evolution of society.

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CJI DY Chandrachud: We can't deny the fact that there is undoubtedly the legislative element also involved.

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Justice Kaul: Sometimes incremental changes in issues of societal ramifications are better. There is time for everything. Therefore what was being suggested was- can we, for the time being, confine it only to limited issue, don't step into personal law issues.

CJI DY Chandrachud: You can assist on how we can develop the notion of a civil union which finds recognition in our statute - the Special Marriage Act?

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CJI DY Chandrachud: Between Navtej and today, our society has found much greater acceptance of same sex couples. That's very positive because you find that there is a greater acceptance in our Universities.

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CJI DY Chandrachud: In this evolving consensus, court is also playing a dialogical role to create that consensus and move towards an equal future.

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Guruswamy: Marriage is not only a question of dignity. It is also a bouquet of rights that LGBTQ people are being denied post Johar. Bank account, life insurance, medical insurance- I cannot buy SCBA medical insurance.

@MenakaGuruswamy

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Guruswamy: This is the reality of how rights are exercised. Rights are exercised when you're able to protect your relationships. One facet of that right is the constitutional value of dignity, equality, fraternity. The other facet is the day-to-day business of life.

#LGTBTQ

Guruswamy: When we look at law in India, most rights flow from this notion of blood relationships, i.e., either being born into a family or being married. That is the problem.

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Guruswamy: If it is short of full marriage, it will mean that subsequently, not just Mr Rohatgi, but Mr Kirpal, me, we will keep coming back to court to litigate individual issues of discrimination.

@MenakaGuruswamy

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Guruswamy: I am not able to nominate my partner for life insurance. These are not theoretical issues. This is our life.

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Guruswamy: This is why we say marriage. Because that is the notion that the legal framework which is premised on common law understands and takes within its fold.

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Guruswamy: So anything short - if it is a civil union, this correspondence will now start with insurance company, with banks, with hospitals, with wills, with estate duties, with anything that is pre requisite to be able to live a life outside a home, including buying that home.

Justice Kaul: Even in Puttaswamy- we found that there were nuances that come up later. It may require more visits to court. We can't say. But we cannot say that it'll be possible to work out all possible nuances now.

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Justice Kaul: If we confine this fundamental issue in one act, we don't get into anything else...

Sr Adv AM Singhvi: On canvas, allow me to say something.

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Singhvi: There are two crucial words here- marriage and persons. Same sex is a slight misnomer. The correct word is persons.

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Singhv: There is two categories of consequences- one is the minor or major secular consequence of marriage. In the event your lordships hold marriage to be this way or that way, not creating an empty shelf, it has to have consequential benefits.

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Singhvi: Your lordships may need to travel a little ahead. These are secular incidents of daily life, as my learned friend said. They involve nothing beyond that. Now there are larger issues which you may leave open. I say even those can be covered by marriage.

Singhvi: Adoption according to me is crucial. But your lordships will guard against holding against left hand that marriage of same sex persons is valid. And on the right hand it would be empty.

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Singhvi: One is sex based, which must includes between man and woman there is a whole range of combination of persons with special biological features. It's not only man and woman.

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Singhvi: The second category is gender- masculine and feminine. So a male body can be imbued by female psychological instincts and vice versa.

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Singhvi: There is LGBTQIA++. This "++" has a whole spectrum of hues and colours. Now if your lordships were to hold same person marriage, your lordships doesn't mean to limit to same sex. So the correct formulation should be "2 consenting adults along bodily gender & sex spectrum

Singhvi: All of this can be started by SMA. We're not arguing personal laws at all. Then about state intervention - Your lordships for the first batch is interpreting SMA.

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Singhvi: The notice issue in SMA shall be struck down.

CJI DY Chandrachud: The notice issue exists in heterosexual marriages too.

Singhvi: Yes and Sections 5-10 have the opposite effect than intended.

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Justice Kaul: You say you don't want to touch personal law. Then the argument is limited. So can we in SMA, read "person" and leave everything else for a better time?

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Sr Adv Geeta Luthra: We have challenged in addition other two secular legislations, many of us have- the Foreign Marriage Act and the Citizenship Act.

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Luthra: With regards to the Citizenship act, the word "spouse" has been used in 2015 subsequent to all these legislations. So all that is required is that spouse means spouse.

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Adv Vrinda Grover: The petitioners before you are not necessarily same sex. In fact in my petition, there are petitioners who have anonymized themselves because they're coming from oppressed castes and communities. They're trans persons...

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CJI DY Chandrachud: Therefore the emphasis was on personhood.

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SG Mehta: First, the question we're misdirecting it. The question is not right of equality, dignity, or privacy of LGBTQ members. The question is right of conferring of a social legal status and whether that can be done by judicial adjudication.

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SG Mehta: There was no law governing rights of LGBT community. Then NALSA and Johar came. Please see the transgender act. Most of arguments are covered. There is no legal lacuna, there is a statutory framework, and a conscious omission by statute.

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SG Mehta: This is the 2019 Act, after Navtej Johar. Please see- Sec 2- defines family, inclusive education, institution, transgender persons...

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SG Mehta: Now see prohibition against discrimination. They're saying we have unfair treatment etc. Transgender here means LGBTQ+, not transgenders as we colloquially understand.

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SG Mehta: These are all criminal offences- if they're denied any rights. There is also recognition of identity of transgender persons- right to dignity, right to personhood- it's all here.

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SG Mehta: Whether we like it or not, whether they give it up or not, whether the court goes into or not- it necessarily affects personal laws. Hindu marriage act is codified personal law. Islam has personal law too.

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Justice Kaul: We're not getting into the personal laws.

SG Mehta: That's not the point. Somebody who is not Hindu can come here and say why did you not give me the same treatment, I want to be Hindu, I want to marry under HMA...

CJI: We're not getting into it.

#SameSexMarriage

SG Mehta: Your lordships will have Hindus, Muslims- everyone will be affected. Therefore the central government very respectfully prays that states will have to be heard.

Justice Kaul: We don't want to touch personal laws right now. Confine to what we're discussing.

Justice Ravindra Bhat: If the remit is being defined in this manner...

SG Mehta: One Mr A is Hindu. He wants to continue as a Hindu and wants to marry under HMA...

Justice Kaul: We're not referring to that...

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SG Mehta: I'm begging to be heard.

Justice Kaul: We've said we don't want to get into the wider question. We're only deciding the A issue today. We can't be compelled to hear everything.

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SG Mehta: Several windows have opened. On the lighter side, several windows have already opened and now they're trying to open the door. I'm saying that you'll have to ultimately open your entire house.

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CJI DY Chandrachud: Those windows will open up whatever we decide.

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SG Mehta: Acceptance of societal relationships is never dependent on judgements of legislations. It comes only from within.

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SG Mehta: My submission is that even Special Marriage Act- the legislative intent throughout has been relationship between a biological male and a biological female.

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CJI DY Chandrachud: The very notion of a biological man is absolute which is inherent.

SG Mehta: Biological man means biological man, there is no notion.

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CJI DY Chandrachud: There is no absolute concept of a man or an absolute concept of a woman at all.

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CJI DY Chandrachud: It's not the question of what your genitals are. It's far more complex, that's the point. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals.

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SG Mehta: Biological man means man with biological genitals. I didn't want to use that phrase.

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SG Mehta: If the notion is treated to be a guiding factor to decide a man or a woman, I'll show several acts which your lordships would unintentionally make non workable.

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SG Mehta: If I have genitals of a man but otherwise am a woman, as being suggested, how will I be treated under CrPC? As a woman? Can I be called for 160 statement? There are several issues.

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SG Mehta: This would be better if gone into by the parliament. The parliament has eminent parliamentarians. Parliamentary committees are not acting in the way we see parliament function. Committees have all parties as members.

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CJI DY Chandrachud: Both Justice Kaul and I have engaged with the Department relating to parliamentary committees. I chair the e-committee. Justice Kaul chairs NALSA.

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SG Mehta: There are certain issues which are better left to parliament.

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CJI DY Chandrachud: You're underestimating the impact that your argument is having on us. Don't underestimate the impact. It's now our turn to put these questions to Mr Rohatgi.

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Justice Kaul: We're saying we're not going into the broader canvas. We're unwilling to go into personal laws. Therefore, they have agreed for the time being to argue on aspects which we're considering.

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SG Mehta: Today your lordships may not go into personal law but the window of personal law will open.

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CJI DY Chandrachud: That's a task for the future generations. The legislative and courts will decide it later.

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SG Mehta: Entry 5, concurrent law is agnostic. It's the law of marriage. It's not Hindu, Muslim or Parsi. So I'm reiterating that my preliminary objection be taken first and you may issue notice to states.

CJI DY Chandrachud: We'll reflect on this lunch.

#SameSexMarriage

Sr Adv Rakesh Dwivedi: Many countries have had several enactments giving them rights. The first question is would this court be holding - because in Navtej you didn't grant absolute equality, you just made some observations...

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Dwivedi: Navtej is not a final authority on complete equality between the relationships- one relationship which has being existing since time immemorial - heterosexual unions.

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Dwivedi: Heterosexual union is responsible for the perpetuation and very existence of human race. Without it society itself will not live. The other relationship exists merely because there is love etc- just one part of heterosexual union

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Dwivedi: Marriage amongst heterosexuals is not the gift of law. It has been existing since rigveda. Manu smriti continued it.

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Dwivedi: The core purpose was to perpetuate the human race. Without it, the relationship cannot exist.

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Dwivedi: Same sex is not a new phenomenon. It existed earlier too but they never claimed equality, they were never given equality. They have existed but not on an equal level.

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Dwivedi: The two unions are different, they're on different pedestals.

Justice Kaul: So your argument is that don't do this because it has various ramifications.

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Dwivedi: I'm saying states are necessary parties and no adjudication should be done without issuing notices and impleading the states.

CJI DY Chandrachud: We'll consider that.

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Sr Adv Kapil Sibal (for Jamiat-Ulema-i-Hind): We believe in the autonomy of individuals. I think people are entitled to have a relationship of whatever kind. That needs to be celebrated as that's where society is headed.

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Sibal: Having said that, assuming your lordships were to say it's a valid marriage, suppose the marriage breaks down and they've adopted a child. What's going to happen? Who will be the father?

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Sibal: Under Criminal Procedural law, who is the woman? Who will get maintenance? These are serious societal consequences of that declaration. Either you take it as a hold, or don't take it at all.

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Sibal: When this is done across the world, other legislatures actually reform other laws in tandem with it. If you do it without reforms, you'll be hurting the other community and that is dangerous. I'm all for it but not in this fashion.

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Sibal: I'm not representing anybody. Because you're leaving the personal laws out of it. I'm out of it and I don't have to be here but having practiced here, i have to say that these are complicated issues.

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CJI DY Chandrachud: All the petitioners can finish by Thursday morning and in afternoon other side can start.

SG Mehta: Is my application then rejected?

The bench will resume post lunch.

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Rohatgi: I am amazed to hear the other side saying that we're not equal. I heard this submission that we're not equal to the heterosexual group- astounding statement coming from the State. The constitution did not make two classes of citizens.

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Rohatgi: We're not equal? As if we must continued to be treated as those stigmatised. That is the mindset today. Therefore, it is important for the court to intervene.

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Rohatgi: Let us first remind ourselves of the preamble of the constitution. My friend said, "how are you equal?" We became equal in 1950. Have a look at the Preamble and I'll shortly show the discussion on Preamble in Puttaswamy.

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Rohatgi: And it must be remembered that preamble is a part of the Constitution as per Keshavnanda Bharti.

[Reads the preamble]

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Rohatgi: Dignity sits in Article 21 after the Puttaswamy judgement.

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CJI DY Chandrachud: There are two words in the preamble which have not been dealt with too often- "and to secure to all of its citizens". Secure means to enable them to have protection of rights.

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CJI DY Chandrachud: And the latter part says "to promote among them all"- so it goes beyond the individual.

Rohatgi: Yes, all means the entire society.

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

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Justice Narasimha: What connects to the lowest level to the unity of the country is the individual - the individual to the nation. Dignity, Justice is connected to individuals.

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Rohatgi: Yes so how can you say that these individuals are not equals? I'm pained to read that this is an "elitist concept"- that's the affidavit of the centre.

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Rohatgi: I found that Nero, the Roman emperor in 1854 married twice- two men, in that time.

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Rohatgi: Justice Chandrachud had referred to the origin of lord Ayappa. How was the lord form? Union of two gods- Lord Shiva and Lord Vishnu, with lord Vishnu in the role of Mohini.

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Rohatgi: Nothing is absolute. SG spoke of transgenders (persons). Transgender (persons) are only the T out of LGBT. LGB is not concerned with transgenders (persons).

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Rohatgi: He says society will decide. Take the Hindu Widows Right to Remarry Act, 1860 something. The society was not ready. Till even early 90s the society wasn't ready.

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Rohatgi: Sometimes mindsets do not change. Parliament or the legislative assembly acts with more elactrity, sometimes with less.

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Rohatgi: "Heterosexual majority is the only one, that is the only way marriage must be seen"- your lordships have held that the majoritarian way must give way to Constitutional freedoms.

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Rohatgi: Navtej was 5 years ago. In 5 years we've seen the change. Some stigma is still there. That stigma can only be removed with the declaration - just like declaration was made in Navtej.

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Rohatgi: It's not only our rights. Look at the rights of our parents. I read an article...

CJI DY Chandrachud: Yes, Mr Vivek Katju, I've read that in the Indian Express.

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Rohatgi: So rights of parents are also there- how to treat children in their society, the elder society.

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Rohatgi: Rights of many are in interplay. Now we go straight to judgements.

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Rohatgi: Secularism was held to be a part of basic structure in Bommai...In Ayodhya also we held that 1993 act was a part of basic structure.

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Rohatgi: "Both gender and biological attributes contribute distinct components of sex..."

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Rohatgi: "The expression sex is not limited to biological sex of male or female but intended to include people who consider themselves neither"- this found its way into Anuj Garg.

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Rohatgi: "Recognition of one's gender identity lies at the heart of the fundamental right to dignity."

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Rohatgi takes the bench through multiple judgements highlighting the rights of LGBTQIA++ individuals.

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Rohatgi: We are facing this disdain, this stigma.

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Rohatgi (reads from a judgement): "The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection"

Rohatgi: This is the core of my arguments. Because we're miniscule, because we have faced this over the years, because we have been sidetracked, because we're looked at with disdain, because we're looked as QUEERS, you're not good.

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Rohatgi: My rights are equal to those of the others. They have a right to marriage, the right of respectability. A concomitant of rights flow from that respectability. The same should be granted to me.

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Rohatgi: I cannot be discriminated upon because we may be ten thousand and the others are ten crores. This is the core of my submission.

Rohatgi refers to judgements again.

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Rohatgi: The other side is talking as if this is 1920s or 30s and they're saying you're not equal, be happy with the 377 judgements, be happy with the rights you already have.

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Rohatgi: Last 70 years this court has been the guarantor of fundamental rights. It's noone's right to say that even if one man comes against this, you better wait for parliament. This court has never accepted this. 32 is itself a fundamental right.

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Rohatgi: I cannot be told that I should wait for parliament to grant me these rights when I'm dead and gone.

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Rohatgi: Choice of an individual is not an "elitist concept". It is innate. People are born with it. So was Nero born, thousands of years ago.

Justice Bhat: Let's not model ourselves on Nero.

Rohatgi laughs.

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Rohatgi: I can't be criminalized but the stigmatisation continues.

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Rohatgi: Procreation, in today's scenario, can also include adoption, IVF, surrogacy- it need not only be procreation in one form.

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Justice Bhat: There is an intersection of privacy in exercise of every right, not just 21 rights.

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Rohatgi (while referring to judgements): I am not reinventing the wheel- it's all here. I am only putting it together because there was no question of marriage in those cases.

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Rohatgi: I don't want merely and amendment to the act without the declaration. Because if your lordships only interpret the act, tomorrow it can be amended and then we're sunk. Thus, I request a constitutional declaration of marriage akin to heterogeneous groups

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CJI DY Chandrachud: There are two corresponding rights and duties- on one hand, the LGBTQ community or a same sex couple is entitled to say that I have the right to make my own choices to live as we wish and that's a part of our dignity, privacy.

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CJI DY Chandrachud: But equally, society can't say that well we'll recognise that right and leave you alone.

Rohatgi: Which means the inequality will continue. They'll say we get to marry and people look up to us but you can't.

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CJI DY Chandrachud: So we will deprive you of benefits that conventional social groups have.

Rohatgi: Yes.

CJI DY Chandrachud: So it's not enough for privacy to leave them alone and make their choices but to assert a right equally to have the recognition of those social groups

Rohatgi: Yes, then we will be at par. It's not good enough to say that we'll leave you alone with 377, now be happy.

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CJI DY Chandrachud: In a sense privacy is an individual concept which allows you to get to the core of your being and allows you to live your life as you want.

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CJI DY Chandrachud: But equally, each of us are social individuals and therefore for society to assert that we'll leave you alone, we will deny you the recognition of those social relationships which go to the fulfillment of life. That according to you is wrong.

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Rohatgi: Yes. Take the example of reservations. Why were they introduced? There was inequality for various reasons. State gave affirmative action to bring them up so as to be at par.

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Rohatgi: In the Indian society, every parent wants their child to be settled. One of the aspects of settlement is not only to choose your education and vocation but also marriage, family.

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Rohatgi: So we must have it too. I request this court to grant it to us.

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Rohatgi: This argument cannot be raised that leave it to parliament, because your lordships are the protector of fundamental rights.

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Rohatgi: I am not perceived as a criminal but I am still perceived as a person who is not as good, unworthy of standing shoulder to shoulder in public arena.

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Rohatgi: When you deny me the right of marriage, you deny me citizenship. If you deny me citizenship, you are saying you're no good, you're not equal to a citizen under preamble so you stay where you are.
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Rohatgi: May I continue for half an hour tomorrow?

The bench agrees.

Rohatgi: I'm very grateful.

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The bench has risen for the day.

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