Thread by @LiveLawIndia

[Marriage Equality Petitions in #SupremeCourt - Day 2]

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

Follow this thread for live updates.

#LGTBQIA #SupremeCourtofIndia #SameSexMarriage

Yesterday's arguments ranged from meaning of gender, maintainability of petitions, if court should deal with personal laws & if law should follow popular will.

Find LiveLaw's coverage on hearings here-

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SG Mehta: Before the petitioners start, I have something to place on record. In continuation of my request that states should be heard, UOI has written letters to all Chief Secretaries...

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CJI DY Chandrachud: So you've told them now that the matter is going on? That's excellent! So now it's not that the states are unaware. You've informed them.

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SG Mehta: That doesn't dilute my request.

Sr Adv Mukul Rohatgi: My lords I am challenging a central law. Merely because it happens to be in the concurrent list, there is no rationale to say that the petition will be bad for non joinder of states.

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Rohatgi: The letter is dated yesterday. Your lordships issued notice five months ago. If you had somebody you could have issued the letter earlier. Unnecessary.

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Senior Advocate Mukul Rohatgi begins his submissions for the day.

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Rohatgi: In some measure, we're revisiting this issue even though this issue is decided. Therefore we ask for a declaration. The declaration is not just a batch we wear but it must atleast go forward even in some limited extent.

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Rohatgi: Take payment of the gratuity act. Other acts will provide pension. They provide pension to only to spouse- the underlying thing is that they're married. A judge's pension will go to a spouse- you have to be married.

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Rohatgi: We want to get us real rights where day to day things are involved - Gratuity Act, Pension Act, Juvenile Justice Act- it provides for adoption- you can't adopt unless married.

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Justice Bhat: You get a declaration, then you say some of these are secular, not personal. So far so good. You may not argue on personal laws. You have strategic reasons to not argue but this court will have to engage. So we're not looking at it as a whole.

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Justice Bhat: Others who are not aware of this form of marriage, and I use these words very carefully, we can't presuppose that everyone knows this- they're denied this. Either they choose their religion, if they choose that then they're out of this. This is one aspect.

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Justice Bhat: The second aspect is intersect with personal laws even here. Keep that in mind when you make the submissions.

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Rohatgi: 469 will fully apply. Instead of the word 'colonial legislation' we can use the words 'colonial mindset'. It is the mindset which started then. Society has evolved but some part of that mindset remains which is evident from the stand of the State.

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Rohatgi: Wherever husband and wife is used, make it gender neutral by using 'spouse'. Wherever man and woman is used, make it gender neutral by saying 'person'.

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Rohatgi: What I'm really requesting, a declaration of marriage, is really a paraphrasing of this- I walk in to a public space with my partner knowing that the law and the state recognises this union as a marriage, noone will raise stigma against me.

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Rohatgi: If we are equal, we require an affirmative nod from the court- that you're equal, you will not be treated as lesser, and therefore, there will be full enjoyment of right to life, dignity, privacy at home...

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Rohatgi: I don't blame the 1954 Act. When it was framed, this is how it was. But we're 70 years down the lane now.

Justice Kaul: Everything can't change at once. Other changes will take some more time.

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Rohatgi: I should get some real filtering down of the order of this court.

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Rohatgi: What I'm saying is that consequential effects will follow. Please see the declaration, we've carefully framed it.

(Reads declaration)

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Justice Kaul: You're saying that you want a specific declaration. According to you, area of litigation shouldn't be so wide that it creates a problem. And though you're confining yourself to the SMA, you're saying that the consequences of marriage are that should be available.

Rohatgi: Yes. I'm not saying that all struggles will end. But I'm saying that if we succeed we should get an explicit declaration.

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Rohatgi: They're saying I'm abnormal. What is normal is the majority. But that's not the law, that's a mindset. The important thing is deconstructing the heteronormative framework- this is what I'm driving at.

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Rohatgi: The argument of the other side is that there is a biological man,a biological woman, their union will lead to procreation, that is the order of nature. In some ways we're revisiting it (Navtej Singh Johar).

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Rohatgi takes the court through various judgements to solidify his submissions.

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Rohatgi: We may be a miniscule minority but having the same rights, we're entitled to the same declaration.

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Rohatgi: Society accepts what the law is. Sometimes the law takes the lead and I gave you the example of the Hindu Widows Right to Remarry Act which came in 1800s. The society was not even ready till 1900s. There law acted with alacrity.

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Rohatgi: Here, we need to push the society to acknowledge us as equals in all respects because the constitution says so. This court enjoys moral authority and public confidence.

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Rohatgi: We rely on the prestige and the moral authority of the court apart from Article 141. When the highest court of the land says that you have a right to marry, that is what will drive the society to accept this group.

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(Adv Arundhati Katju says something to Rohatgi)

Rohatgi: Our parents have by and large accepted us. We've gone through the process with our parents. They want them to settle, have a family, have the same recognition.

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Rohatgi: In my case, the ceremony was conducted by the parents ten years ago. They also went through some transformation. They had a reception. They were from a small home town. Some people go abroad and marry.

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Rohatgi: Please see this from Nepal- this is definitely not a case of "urban elitism".

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Rohatgi: In Navtej, the Centre's affidavit said, "we leave it to the court". But the court commented on it in Navtej- that we wish you would have taken a stand. So it's not a matter of grace that oh we leave it to you.

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Rohatgi: Kindly read the conclusion in Navtej- "If this (decriminalizing homosexuality) is the first step is the affirmative steps remain." The prayers I seek are affirmative steps which will help me lead a dignified life.

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Rohatgi: In the US also, a large part of the society is also very conservative. In the recent past, they have gone back on abortions! It's not that they're very much ahead- the red necks as they're called. They're very conservative.

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Rohatgi: Things change when the moral authority of an institution says that look through the prism of gender neutrality.

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Rohatgi: This Victorian morality issue came in 1800s. If you go back to Indian texts, for hundreds of years, these acts (homosexuality) were depicted on walls for thousands of years. That remained the concept of morality.

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Rohatgi: Our morality was very different, far more advanced, not victorian, not stereotyped, not stigmatised in this form! But then it changed.

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Rohatgi: British period stuck because they made the laws. They conquered the land. Those laws were imposed on us. That is how shifting sands of time changed us.

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Rohatgi: When the Hindu Code came, parliament wasn't ready. The Hindu Code wasn't just Hindu Marriage Act, it had adoption, succession - so many things. It wasn't accepted. Dr Ambedkar had to resign.

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Rohatgi: Then it came in a truncated manner. First the Hindu Marriage Act, then succession act, then adoption, guardianship - all of them came after. So what was not accepted in 1950 was accepted in 1956, and then became the norm of the society.

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Rohatgi: Prior to the Hindu Marriage Act, a Hindu could marry three times. That became an anathema when India progressed with Hindu Marriage Act.

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Justice Kaul: This is a double edged sword. Because the argument of the other side is that the parliament will do it when society is ready.

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Rohatgi: Sometimes the law takes the lead, sometimes the society takes the lead. The power, jurisdiction, obligation, and responsibility of this court is only cast on this court. Even the HC doesn't have that power- as the final protector of FRs

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Rohatgi: 32 itself is a fundamental right. If I have a right and that right is being clouded by the majority or by the state accepting the majority as correct, I have a right to come to this court and this court will fail its duty if it fails to remedy it & says go to parliament

Rohatgi: I don't have a voice before the parliament. I have a voice here.

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Rohatgi: If one man's fundamental right is affected, he has a right to come to this court.

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Rohatgi: Nobody can deny a full and equal citizenship- it can't be sans marriage, sans family, sans the respect of a marriage, and we'll forever be treated as those people.

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Rohatgi: I am not invoking a new basis. The basis already exists. It's already the law of the land. But it stopped at decriminalization because that was the issue then.

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Rohatgi: I am saying that legislative tool maybe good when we're discussing a normal law. But today we're discussing a constitutional provision and if a constitutional declaration is granted, all laws are subservient to the constitution - so they must then be read in conformity

Rohatgi discusses provisions of SMA.

J Kohli: What you want to read it as is instead of a man, read it as person.

CJI: According to you, if two men are getting married, it's not just Part 1 which will apply and if two women are getting married, it's not just Part 2 will apply.

CJI DY Chandrachud: But this is also a tacit indication that the SMA did not contemplate people of same sex getting married.

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Rohatgi: To conform to the constitutional declaration, it has to be this. Otherwise this will become unconstitutional if the declaration is granted. We don't want it to be unconstitutional. We want to utilise it.

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Justice Kaul: I was telling my brother that the relation I just saw is sister's daughter but in many communities it is almost an intrinsic right to... we're such a varied country.

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Justice Kohli: How will you read it, if it is read as "person"?

Rohatgi: If you read it as a person, it will give a dual age. What will be 18, what will be 21?

Justice Bhat: So for main part you want it to be gender neutral but for Part C you want to retain male and female.

Rohatgi: Yes because there are different ages- 18 and 21. There is a proposed bill to increase 18 to 21. There is already a bill. The moment 18 becomes 21 for women...

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CJI Chandrachud: Before Justice Narasimha and me- this part where female should be 18 was challenged by @AshwiniUpadhyay and we dismissed the petition stating that if we hold that unconstitutional there'll be no minimum age of marriage.

Read more here-

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J Bhat: There are so many spectrums- how do they get accomodated?

Sr Adv KV Vishwanathan: Section 4 guarantees them the option to choose the gender they manifest. A male will manifest as...

J Bhat: So ultimately you're going back to the social stereotype you want to avoid.

Justice Bhat: It syncs with what you want, it suits your purpose.

Vishwanathan: The act guarantees the manifested gender.

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Rohatgi reads provisions of the Special Marriage Act to show where gender neutral terms should be inserted.

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The bench discusses amongst itself.

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Sr Adv AM Singhvi: I'll have broadly three heads of submissions. I was hoping to finish by tomorrow lunch.

Justice Kaul: Your ability to put it in points should ensure it is finished today.

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Singhvi: Today it might not be possible. I wish I could have started earlier.

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CJI DY Chandrachud: Something which can go from the bench to the bar is that sometimes you feel that merely because you had longer time to decide a matter doesn't mean you decide it better.

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@DrAMSinghvi: Let me begin by saying what this matter is about. It is ofcourse about the three headings, that are- the interpretation of the SMA to be interpreted as constitutionally compliant. The second head is going to be notice and objection regime of SMA.

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Singhvi: Third would be relief which your lordships will modulate or tailor or mould in whatever form your lordships want.

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Justice Bhat: On the second point (concerning notice and objection under Special Marriage Act) is there a petition asking for a declaration?

Singhvi: Yes, our petition.

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Singhvi: My submission is that the heart of this case is not about the statutory provisions, the weaving of these sections as constitutionally compliant or non-compliant, the notice regime- these are all important.

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Singhvi: The heart of this case is the right to choose the most enduring of all relationships, the marital relationship, regardless of sex and sexual orientation.

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Singhvi: And the heart of the matter is to manifest the idea of love in marriage regardless of those distinctions- sex, sexual orientation, gender, or gender identity.

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Singhvi: The obverse heart of the case is the discriminatory denial to a section of the community to do it based on that sex, sexual orientation, gender, gender identity - that is the exclusion, the discrimination.

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Singhvi: Navtej Johar was momentous by decriminalization but it still remains in a real sense- little done, vast undone. Your lordships is now travelling to reach significant done.

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Singhvi: Your lordships are removing the next brick of exclusion and discrimination.

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Singhvi: Your lordship has dealt with anti discrimination as the underlying philosophy of Navtej Johar. Your lordship is now knitting a more seamless web of anti discrimination.

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Singhvi: The other facet of this is the recognition that it is not the state alone which imperils the core values of equality, liberty, fraternity.

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Singhvi: It is also groups- private groups and non-state actors, which are entrenched forces over the years, whether in society or forms of organisation- we also need protection from those groups.

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Singhvi: Therefore your lordships will be protecting the petitioners from both these actors- state and non state actors.

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Justice Bhat: What will be examples of that?

Singhvi: One obvious example is notice and objection regime.

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Singhvi: Vigilante groups...

Justice Bhat: The point is a declaration of marriage, or the relief you seek, how will that per se result in your protection?

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Singhvi: Assuming that your lordships state that same sex marriage is valid. The legalisation of same sex marriage, along with consequences, is a very big victory.

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Singhvi: Your lordships may not eliminate murder but your lordships will say murder is wrong. Once you declare this, I'll be in the right side of law.

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Justice Bhat: But those groups will continue operating the way they are. Unless what you're saying is that the value of this right is such that the state is under an obligation to protect you.

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Justice Bhat: The value that you place in fundamental rights- one takes it as the same value. It's an indivisible value. Right to free speech for instance, right to association, and all those rights- you can't privilege one over the other.

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Justice Bhat: You're wanting us to strike another path and say that you give us this privilege that the State is bound to protect us.

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Justice Bhat: If that's the argument, there's nothing wrong with it.

Singhvi: Assuming your lordships puts me on the right side of the law, first consequence is that I'm entitled to seek state protection against invasion.

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Justice Bhat: Playing the devil's advocate, last question, what prevents the state to protect you today? Because it is decriminalized?

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Singhvi: Decriminalization is a very small part. It doesn't give me any rights once I'm in the marriage.

CJI DY Chandrachud: We'll come back after lunch.

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The bench has risen for lunch.

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Singhvi: We'll first deal with the larger constitutional facets on non discrimination, dignity, and free speech. And then I'll give your lordships a very interesting development on the approach to interpretation to make things constitutionally compliant.

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Singhvi: And to also make them treaty compliant in England. Then I'll come to reconciliation mentioned by Justice Bhat.

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Singhvi: These are three constitutional facets being practiced on ascriptive issues- those issues which are not taken by choice. Ascriptive characteristics are race, caste, ethnicity, national origin- here it would be sex or sexual orientation.

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Singhvi: The implied exclusion of the entire LGBTQ class from SMA is based on a sole marker of identity - sex and sexual orientation.

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Singhvi: The second aspect is that when the GOI in its various places in counter says for example "socially, culturally, and legally ingrained", it fails to really address that the SMA was created as an alternative to what you might call socially ingrained concepts of marriage

Singhvi: The government of India is saying that you're liable of being excluded only because of ascriptive characteristics - involuntary, external, and not by choice.

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Singhvi: It is because marriage is a vital foundation, we the excluded class, wants to have all those index of marriage which follow a marriage.

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Singhvi: For those who seek marriage, they seek it for a community and social validation of a relationship. And I can't agree more with Mr SG that just like heterosexuals deserve it, non heterosexuals also seek it and deserve it.

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Singhvi: Second, marriage is vital and important because of the sense of security it provides to couples. Why should there be exclusion of one set of couples?

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Singhvi: Third, it provides greater financial support and security.

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Singhvi: It's a gateway to those consequences. Obviously I don't marry because I want a tax benefit but it is a gateway to some important things.

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Singhvi: Those gateways are tax, inheritance, adoptions too.

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CJI DY Chandrachud: Incidentally, even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt. So the argument that this will create a psychological impact on the child is belied by the fact that today as the law stands, it's open.

CJI DY Chandrachud: It's just that the child loses the benefits of parenthood of both the parents.

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Singhvi: Fifth is that marital status by itself is a source of dignity, fulfillment, and self respect. These are not adjectives. This is the real world. It actually happens.

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Singhvi: Last is, it is an integral aspect for the ability to have and enjoy a family life.

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Singhvi: Adoption, surrogacy, interstate succession, tax exemption, tax deductions- it simply requires marriage- compassionate government appointments...this is only illustrative, not exhaustive.

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Singhvi: Only marriage is required for these, everything else follows- compensation to dependants, appointment of nominees for receipt of post retirement benefits, spousal communication, right to bodily remains and so on.

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Singhvi: Then there is the horizontal set which are daily incidents of harrassment.

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Justice Bhat: One question here- for instance take insurance, the insurance law per se is a subject to regulation. So do we have IRDA regulations or these are standard policies which are approved.

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Singhvi: They will originate from IRDA requirements but they will be in all policies.

Justice Bhat: But do IRDA regulations use these expressions or are they left loose? I suspect they are open ended.

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Singhvi: We're talking about group insurance. I am a family with one, two, and children- you get a family group insurance. There you may not get.

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Singhvi: At the end of the day, the basis of denying me is that I'm not married or that I'm married in a form not accepted by law.

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Justice Bhat: There are certain things which can be done straight away without entering other arenas. If there is no prohibition in parent enactment, it becomes that much easier.

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Sr Adv Menaka Guruswamy: How my lords define marriage will address those concerns. So there is no specific RBI guideline. The assumption is that if you're spouses, you can have that joint bank account. Similarly, for insurance.

@MenakaGuruswamy

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Justice Bhat: There are some things which can be done without any barriers. You have to identify and tell us.

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Guruswamy: In this, I suspect that the moment this court opens the definition of marriage, those concerns are addressed. Because routinely insurance companies and banks have only this concern- that you have to be married.

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Singhvi: The most important is discriminatory exclusion of this class on only sex and sexual orientation.

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CJI DY Chandrachud: So you're saying, the state cannot discriminate against an individual on the basis of a characteristic over which a person has no control.

Singhvi: Exactly!

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CJI DY Chandrachud: And when you say that this is an innate characteristic, it's also an argument in response to the contention that this is very elitist or urban or it has a certain class bias. Something which is innate cannot have a class bias.

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CJI DY Chandrachud: It may be more urban in its manifestations because more people in urban areas are coming out of the closet.

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CJI DY Chandrachud: There is no data coming out of the government that this is urban or something.

Singhvi: One of the points we're making is that every averment in the counter is without a single survey, single data, single test.

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Sr Adv KV Vishwanathan: My client is transgender, was disowned by the family, begged on the streets, and today she is director in KPMG- all by herself. For her to be branded an "urban elitist" shows absolute lack of grace.

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Vishwanathan: Today she is a member of the Transgender Council nominated by the government under the Act!

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Counsel: Similarly, in my petition, @PadmashaliAkkai - she is a well known trans activist. At the age of 15, she was thrown out of her own house. She had to drop out of school, she was on the streets, and thereafter she came back mainstream.

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Counsel: These are the lives they've led. And to say that this is an elitist concern is wrong.

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Adv Karuna Nundy: Under the Transgender Act, Kinnars, Aravanis, Hijras, Jogtis are recognised as a separate class.

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Singhvi: The SMA is a non religious marriage related legislation. This addresses the point of the respondent which is "cultural understanding of marriage as a union". Cultural understanding of marriage was not the basis of SMA.

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CJI DY Chandrachud: So you're saying that the SMA was intended to be agnostic to faith. So by reading it as agnostic to sexual orientation, you are not making a leap of faith.

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Singhvi: Yes! Second, broadly see what the government is saying. Stand one- cultural ethos. Stand two, which I'm very strongly supporting, marriage is a vital institution.

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Singhvi: Third reason that it will impact personal law which your lordships have put on a side. Fourth reason is "self referrential or self validating statements".

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Singhvi: What they're saying is- since I the government of India have defined marriage as a marriage between man and woman, you're in the wrong.

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Singhvi: You can't trump equality principles by reference to societal values. If I'm here on exclusion, based on discrimination, then assuming- I'm not at all accepting that societal values make it outside, but if they were, they cannot trump non discriminatory principles.

Singhvi: It is wrong to think that text of the statute is a limitation. It is wrong to think that even intent is a limitation. With evolving dynamics of time and society, the two tests are to make it treaty compliant...

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Singhvi: Text evolves over time, even intent evolves over time. Your lordship is looking not to strike down anything but to make it constitutionally compliant.

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Singhvi: Your lordship is allowing the creation of hierarchy between different conceptions of the family- involving unions between some kinds of persons more equal than others to have unions.

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Singhvi: Hierarchy, which is a sub classification, your lordship will not allow under Article 14.

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Singhvi: Freedom of expression includes the freedom or the right to express one's gender identity in all its manifestations.

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Singhvi: If a law was made, which part of 19(2) can be relatable to when the core values of Constitution your lordships is discussing.

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Singhvi: Hypothetically, the very text of 19(2) doesn't make it easy to think of a law which can be made- it's a hypothetical argument made to show the contrast.

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Singhvi: Third and the last prong is the dignity point under A 21. This is actually intersection of 14 with 19(1)(a)- the right to express one's gender identity is being questioned by the State without a law under 19(2).

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Singhvi: The right is being questioned on the ground that the rights heterosexuals have, non heterosexual couples do not have.

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Singhvi: The projection of the gender identity, which is a part of free speech, is inhibited by your stand which allows that right unfettered in heterosexual category.

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Singhvi: If they can't do it for heterosexual couples because your lordships will undoubtedly hold it as an unreasonable restriction, how is it a reasonable restriction for me?

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Singhvi: The silence is being read in the counter and the stand of the government as a restriction.

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CJI DY Chandrachud: It is not so much as statutory silence as much as failure to enact a law.

Singhvi: More than failure to enact, they will not recognise.

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Singhvi: The third pillar is dignity. Dignity is "to treat everyone with equal concern and respect" and not to send a message that any individual is worth less because of their ascriptive characteristics.

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The bench has risen for the day.

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