Thread by @LiveLawIndia

[Day 3 of Marriage Equality Case in the #SupremeCourt]

A constitution bench of #SupremeCourt will continue hearing the batch of petitions seeking legal recognition for queer marriage in India.

Follow this thread for live updates.

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Adv Arundhati Katju: I've prepared a list of arguing counsels as per their seniority. And I've indicated the time they'll take to argue. Please see.

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#SameSexMarriage #LGBTQIA

CJI DY Chandrachud: On this side, we have to complete the arguments today. No question of going beyond today. We've now heard two learned counsels. At lunch all of you sit and ration the time so that you can finish by 4 pm.

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Advocate Karuna Nundy: Just to hear the matter in fullness, perhaps one more day could be granted.

CJI DY Chandrachud: No, there are Supreme Courts which would give 30 mins to argue. We've given 3 days already, it's enough.

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CJI DY Chandrachud: What we were thinking was - next week we'll sit on Monday, Tuesday, Wednesday, Thursday - like we did in Ayodhya, we had no miscellaneous days.

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CJI DY Chandrachud: After next week, Justice Kaul is travelling. My lord isn't available after next week. Then we have no problem in taking in July

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Advocate Karuna Nundy: Please grant us time till Monday.

CJI DY Chandrachud: Okay ma'am, we have no problem, let's go on till August. Justice Bhat is retiring in Oct so we'll form new bench after. Let everyone go on merrily.

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CJI DY Chandrachud: Forget this issue and your arguments, if constitution benches have to go on and five judges leave their regular benches- we don't want to add on to the disposals. The inflow is so heavy, we don't want to add on to it.

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CJI DY Chandrachud: We will start hearing Dr Singhvi. Dr Singhvi, wrap up by 12.30.

Singhvi: Please count my 45 mins when I start.

CJI DY Chandrachud: Alright, your time begins now.

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Counsel: I am appearing for a gay activist. I have to take your lordships to what Martha Nussbaum said

CJI DY Chandrachud: We've read Martha Nussbaum. I read Martha Nussbaum after a heavy day. Place a note. Someone will now come say I want to now point out Roseland Dickson.

Senior Advocate @DrAMSinghvi begins his arguments for the day.

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Singhvi cites a judgement.

CJI: Dr Singhvi, this was a case where the act squarely applied to unmarried relationships. The principle was that if the act applies to unmarried Heterosexual relations, there is no basis to exclude unmarried relations amongst homosexuals.

#LGBTQIA

Singhvi: Yes, when you have a particular paradigm applying to heterosexual group, your lordships will find it discriminatory not to apply the same to homosexual groups.

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Singhvi: Now I turn to the article on being constitutionally compliant and treaty compliant- it's one of the best articles on interpretation.

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Singhvi: "Parliamentary intention is not the touchstone"- this is another red herring which your lordships may have to deal with in the present case.

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Singhvi: Second thing which is not determinative is statutory text. It's quite interesting that an English court is saying this.

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Singhvi: So intention, statutory text, and now we have a third test- "important fundamental rights" involved.

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Singhvi: So your lordships ultimate guidestar is- intention of statute, no; text of statute, no; parliamentary overall purposive understanding, no; but the ability to achieve a convention compliant result.

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Justice Bhat: Two points- first is how you make it consistent with the convention. Second is, they abandon the purposive construction and the textual and the intention based...

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Singhvi: There are two ways of looking at this. One is that we challenge it on the ground of unconstitutionality- as we're doing the notice and objection period clause.

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Singhvi: The first test your lordships is asking me is intra legislation. To that the answer is if there is a prohibition.

Justice Bhat: How can we confine to that concept? That if there is a prohibition then only we say it should go back to the legislative drawing board?

Singhvi: If your lordships found that in SMA, the underlying thrust is not this, then your lordships goes one way. And if you find that the underlying thrust of SMA does not exclude a same sex couple- that means...

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CJI DY Chandrachud: Here, you said that you're leading us on the part of statutory interpretation.

Singhvi: Statutory interpretation, not based on text, not based on original intention, not based on purposive theological intention...

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CJI DY Chandrachud: So you're asking us to read into the statute the expression "spouses" for man and woman.

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CJI DY Chandrachud: Your principle premise is that when the legislation was enacted in 1954, the object of the legislation was to provide a form of matrimony for people who are not falling back on their personal laws.

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Justice Bhat: So this was an all-enfolding kind of legislation.

CJI DY Chandrachud: And in last 69 years, our law has really evolved. When you decriminalize homosexuality, you also realise that these are not one-off relationships, these are also stable relationships.

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CJI DY Chandrachud: And by decriminalizing homosexuality, we have not just recognised treating relationships between consenting adults of the same gender but we've also recognised that people who are of same sex would even be in stable relationships.

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Singhvi: Let me put it very bluntly. When you enacted the law, in the debate in the parliament, you may not have homosexuals in your mind. You may not have considered them.

CJI DY Chandrachud: And that makes no difference.

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Justice Bhat What you're propounding is- this provided a framework but that framework is that of the concept of marriage. And the concept of marriage transcends temporary understanding, it's an evolving dynamic.

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Justice Bhat: So used in a constitutional sense, it only provides a framework. That framework is broad enough to assimilate later developments.

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CJI DY Chandrachud: And from the perspective of institutional capacity, we have to ask ourselves whether we would be doing something which is fundamentally contrary to the scheme of the statute.

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CJI DY Chandrachud: So long as straddle that line which divides policy from the judicial process, you're still in the fold of...

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CJI : Looking at India, constitutionally and socially as well, we've already reached the intermediate stage. The intermediate stage postulates that by decriminalizing homosexuality, you contemplate that people who belong to the same sex would be in stable marriage like relations.

CJI DY Chandrachud: So we see these relationships not just as physical relations but something more of a stable, emotional relationship.

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CJI DY Chandrachud: Once we've crossed that, we have to see if we can recognise marriages, not marriage like relationship.

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CJI DY Chandrachud: It requires us to redefine the evolving notion of marriage. Because is the existence of two spouses who belong to a binary gender a necessary requirement for marriage?

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CJI DY Chandrachud: Or has the law now progressed sufficiently to contemplate that the existence of binary genders, may be, but is not necessary for definition of marriage.

Singhvi: To that comes the intersection of Article 14.

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CJI DY Chandrachud: In a way, what happened in UK is not the same as India. The HRA in UK was to enforce treaty obligations under ECHR. For us, we've always had the overarching principles of constitution which is above.

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CJI DY Chandrachud: We're expanding the meaning of the statute in the context of constitutional guarantees. And in that you're saying be liberated from the bare text of the constitution.

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CJI DY Chandrachud: We've never seen ourselves as bound by the original interpretation of the constitution. So then should we be bound by the original interpretation of a statute?

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CJI DY Chandrachud: Is the relationship between a man and a woman so fundamental to our law and SMA that for us to comprehend that it would also include a relationship between a same sex couple would be completely redoing the tapestry of the legislation?

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CJI DY Chandrachud: Your argument is that the institution of marriage in itself is so very important that denying it to same sex couple would be contrary to fundamental rights.

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Dr Singhvi takes the court through other judgments.

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Singhvi: There is a question concerning age. The simple and the correct solution is that whichever of the same sex couple is involved, that age will apply.

Singhvi is referring to S. 4 of the SMA. Read more about bench's queries on the same here-

livelaw.in/amp/top-storie…

Singhvi: The next question which may arise is what about the trans categories. My submission would be that in 99% trans categories your lordships is able to slot the person as per the gender which he/she professes.

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Singhvi: The next point is that your lordships will keep in mind that I am focusing on the discriminatory parts of the provisions. We're not challenging or interpreting all provisions. We're challenging the discriminatory portions of gendered provisions.

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Singhvi: Then some provisions which may not create any issues- which are only created for and applicable to heterosexual couples- such as 27(1)(a). You cannot have a system which applies uniformly to everybody, like rape.

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CJI DY Chandrachud: Why can't we apply that to a homosexual couple?

Singhvi: It's a criminal offence which is being defined "non consensual penile vaginal penetration".

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Singhvi: Ofcourse it has been expanded by the Verma committee to meet other forms. But otherwise it is non consensual penile vaginal penetration.

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Singhvi: It is true that rape is a crime even by a woman on a man in France. Those are special cases. Today your lordships issue is can you move forward with these kinds of obstructions?

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Justice Bhat: In this case it would apply to one kind of same sex partner- this marriage offence.

Singhvi: It is possible. It is a crime. According to me, it will be covered in a penetrative same sex situation also.

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Justice Bhat: We're talking about outside marriage when you indulge in that.

Singhvi: Your lordships will have to hold this category of unions as marriage first. Then the question will arise.

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Justice Bhat: We're testing it. If this happens, then it will apply to one class of same sex and not other.

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Singhvi: There are two ways. If your lordships hold this class to be covered, then your lordships would have S 27 applying to penetrative assaults even in same sex.

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Singhvi: Alternatively, your lordships could say that it is a criminal offence which has been defined in a heterosexual context.

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Justice Kaul: In a heterosexual relationship, say there can be a possibility of bringing rape into it. Then how can homosexual relationships not have that?

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Singhvi: If your lordships were to apply the definition of non consensual penetrative sex then it would apply.

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Justice Kaul: Should we stop short? I'm just thinking. If we say that under this act, marriage can be registered. Thereafter, there may be many many nuances which will arise. Can we take care of all future eventualities?

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Singhvi: There's one flipside to this. Marital rape is not recognised in this country. As of today, rape is not a recognised crime in marriage. It may be a ground for divorce or cruelty.

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Justice Kohli: Karnataka HC judgment stated it (marital rape) is a crime.

Singhvi: Your lordships is still debating, it's not the law of the land.

Read more here-

livelaw.in/top-stories/su…

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Singhvi: If this bench was to recognise the issue we're canvassing, your lordships will be recognising marriage between this act.

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Justice Kohli: Would we like to go that step further to go into this? Because there are several shades.

Singhvi: Yes, your lordships can iron them out. But I'm not raising this.

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Singhvi: There are Parsi, Christian, so many other forms of marriages. No other requires a notice of prior intent to marry.

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Singhvi: This is peculiar to the SMA that before I intent to marry you, I must declare this intent publicly and wait.

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SG Mehta (referring to the challenge of notice and objection under SMA): This is a different issue. We've not filed a reply.

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Singhvi: My learned friend has filed a reply, it's a constitutional issue. Let me finish. This part is unconstitutional because before a formal entry into a marriage, you're invading my privacy by directing me to declare my intention in public domain for objections to be invited

Singhvi: Which married couple in the heterosexual world has to announce first to the world that we intend to marry? Forget heterosexual but even in personal laws- Parsi Act etc. Why should I? It's my personal decisional autonomy.

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Singhvi: It's the heart of my privacy to decide with whom I associate when, how, after how much time into matrimonial union- be it of the same sex or heterosexual sex.

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Justice Bhat: This was based on patriarchy.

Singhvi: Yes!

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Singhvi: My next point is that if you have conditions of marriage and you're requiring an affidavit to be filed that I satisfy all these conditions. And if those conditions are found false, the outside world can challenge - what is the purpose of this prior notice?

Singhvi: What are you serving by this? I'll tell you what you're serving in actual practice even in heterosexual marriages. It is serving patriarchy.

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Justice Bhat: It was created at a time when women didn't have agency.

Singhvi: This is an invitation to disaster and violence.

CJI DY Chandrachud: And the object was to protect!

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CJI DY Chandrachud: You're virtually laying them open to invasion by society!

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Singhvi: The other aspect it hits is choice- individual decisional autonomy, privacy, individual dignity. These are constitutional core values.

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Singhvi: This is not to be struck down only for same sex couples but it should be struck down per se- for heterosexuals and non heterosexuals.

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Singhvi: Personal laws don't have it. It's the only act which has notice and objection. It directly hits Art 14.

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While concluding his submissions, Dr Singhvi refers to Oscar Wilde.

Singhvi: He was a homosexual in that era, he was imprisoned for it. He put this- “And alien tears will fill for him pity's long broken urn. For his mourners will all be outcast men, and outcasts always mourn.”

The bench has risen for lunch.

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Sr Adv Raju Ramachandran: Way back in 1956, the iconic Justice Vivian Bose said - "The constitution also exists for the common man, for the poor and the humble, for those who have businesses, for the butcher, the baker & the candlemaker."

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Ramachandran: In this context, it is important to state who I am representing. Petitioner 1- Kajal, is a Dalit woman from a town in Punjab. Her partner, Petitioner 2- Bhavna, is an OBC from Bahadurgarh, Haryana.

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Ramachandran: Bhavna works as an accountant in Chandigarh and Kajal works as an assistant in a bakery in Chandigarh. She is the baker whom Justice Vivian Bose had in mind.

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Ramachandran: The mere presence of these two petitioners and similar petitioners should put down the glib assumption made in the government's affidavit that they are "urban elite".

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Ramachandran: That statement was careless, unnecessary, and insensitive. The institution of marriage is not just the gateway to various socio economic rights but it is a societal protection from their own natal, parental families.

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Ramachandran: Such couples do not have enlightened parents. They don't have understanding families. The two petitioners had to move the Delhi HC for protection orders.

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Ramachandran: The recognition of their marriage is an important protection to them.

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Ramachandran: First, I am providing another interpretation of Section 4. Second, there is another aspect of 14,21, and 25- which is freedom of conscience - which I will briefly touch up on.

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Ramachandran: Third, I'll provide historical background for notice provisions. I'll show how they're so utterly out of place in today's context.

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Ramachandran: Unless a protocol is put into place on the lines of the Shaktivahini protocol which your lordships laid down in case of heterosexual couples seeking protection from Khaap panchayata- a similar protocol is imperative.

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Ramachandran (after reading Section 4 of SMA): The words male and female are not suffixed with the word partner or with the word party.

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Ramachandran: The language of this act enacted in 1954 itself is capable of accommodating situations like ours. Because if it is a male-male union or a male-trans male union, then 21 will then refer to them.

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Ramachandran: Correspondingly, 18 will be attracted to a female-female, a female-transwoman, a transwoman-transwoman and that can also accomodate 1/4th category which is transgender persons.

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Ramachandran: The very age differential which the law prescribes is rooted in the traditional perception, a patriarchal perception, where the male is the bread earner, the provider and so he must be old enough to earn. And the female is childbearer and is fertile at 18.

Ramachandran: That is the archaic logic applied here. For the moment we'll learn to live with this lack of logic.

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Ramachandran: Justice Kohli had asked- is it a restriction or a lack of recognition? To this, the answer is that it is a lack of recognition and that lack of recognition leads to denial of equal protection of laws.

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Ramachandran: My right to health under Article 21 includes my right to have appropriate medical decisions taken for me by the person whom I love.

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Ramachandran: So often in such situations there is an alienation from the parental family. So in the event of sickness, the individual is left without a person who can take responsible medical decisions.

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Ramachandran: If I am gay or lesbian or any other category, then my health and happiness depend on a fulfilling union with a person of my choice.

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Ramachandran: It is an aspect of mental health.

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CJI DY Chandrachud: There's a whole segment in my judgment in Navtej which deals with right to health, mental health etc.

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Ramachandran: Art 25, freedom of conscience. I have a right to freedom of my own moral compass.

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Ramachandran: The legislative history of SMA is set out here. Originally, there was no codified law of marriage in India. It was all customary. Then during the time of British, a need was felt for law of marriage for the British.

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Ramachandran: That time a law was made and it was only for Christians. And then came Brahmo Samaj- for secular marriage.

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Ramachandran: Not being a Hindu, that was a pre requisite. That changes in 1923 after which you were no longer required to renounce your religion. But there is a severance of joint hindu family status which continues in SMA.

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Ramachandran: That is ultimately undone in 1976. That is as far as the law of marriage is concerned. Then we come to the history of notice in the context of these laws.

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Ramachandran: They originate in 1753 Act of British Parliament whose name speaks for itself - 'Act for the better preventing of clandestine marriages, 1753'.

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Ramachandran: The provision which originates in a preventive statute now continues to the SMA which is an enabling statute.

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CJI DY Chandrachud: If the effect is to defer your right to get married at a time when you desire to, it can't be regarded as procedural because the impact is on your substantive right to get married at the time you choose.

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Ramachandran: This notice requirement amounts to requirement of giving a notice to exercise my fundamental rights.

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Ramachandran: If my fundamental right to marry is read into 21, I can't be asked to give notice of the exercise of my fundamental right at a future date.

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Ramachandran: This 30 day notice is designed for parental bodies and other busy bodies to create roadblocks. Justice Bhat in Delhi HC had to deal with such a case- where the enthusiastic marriage registrar sent notice to parent jurisdiction.

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CJI DY Chandrachud: If the purpose is to ensure that people do not enter into a marriage which will suffer from being void, then this is not the least restrictive means which the proportionality test requires us to employ.

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CJI DY Chandrachud: There is a very real likelihood that this will disproportionately affect situations in which one of the spouses either belongs to a marginalized community. This has a disproportionate impact on most vulnerable of society.

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Justice Kohli: This would be equally true for heterosexual couples too.

Ramachandran: Yes, it should be struck down for all. It's a retrograde provision. And it's obnoxious.

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Ramachandran: Let me set out the main provisions which have to go and the consequential provisions which need to go. 5-8 will be the main provisions. The consequential provisions would be 9, 10, 14...

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Ramachandran: Finally the provision which needs to go consequentially is 46.

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Ramachandran: Couples on the run from their families need protection of the State through this court. Because if the state has a duty to protect FRs, such a protocol is necessary.

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CJI DY Chandrachud: Equally, we have to be careful that in the guise of the protocol we do not empower these officers who come into possession of information to use informal methods to use this information.

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Sr Adv KV Vishwanathan (for @zainabjp): I appear in Zainab Patel v UOI. At the bottom of these constitutional issues is one plea of the petitioners here. To simplify it, it is this- If we can be sons, daughters, brothers, sisters, uncles, aunts, friends, why not married spouse?

Vishwanathan: They say that by your very nature, you cannot procreate. Is procreation a valid defence for negating the rights of recognition of marriage?

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Vishwanathan: Even today people who are beyond age of reproductive capacity- women above 45 who may medically be unsafe for pregnancy are allowed to marry. Heterosexuals who have decided to not procreate can marry.

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Vishwanathan: They're saying that all other relationships are fine. You're almost equal, but separate.

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Vishwanathan cites the judgment in Plessy v Ferguson and states that similar argument concerning 'equal but separate' was made in the said case.

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Vishwanathan: There are much greater things in a marriage. It helps in developing human personality. To look at it from procreation perspective is completely fallicious.

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Vishwanathan: The act will have to be tailored.

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Vishwanathan: My petition seeks a declaration. Honestly, an amendment was drafted but Zainab is not well to execute that affidavit.

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Vishwanathan: Then the aspect of transgender persons. In transgender persons, the three categories - the male manifested gender, the female manifested gender- they're entitled to maintain that manifestation.

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Vishwanathan: NALSA expressly gives the right to marry.

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CJI DY Chandrachud: Your point is that non recognition would itself be an act of constitutionality and so to save it you have to do this.

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Ramachandran: The Central Adoption Regulation Authority Rules doesn't permit adoption by a single member unless they are married.

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Ramachandran: Long back in our country the law was- all that is required is the welfare of the child. If that is applied, it doesn't matter whether it's a heterosexual couple or a homosexual couple.

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Ramachandran: All these studies and evidence show that homosexual couples are as well suited as heterosexual couples to bring up children.

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CJI DY Chandrachud: And what happens when there is a heterosexual couple and the child sees domestic violence? Will that child grow up in a normal atmosphere? Of a father becoming an alcoholic, coming home and thrashing the mother every night, and asking for money for alcohol

CJI DY Chandrachud: There are no absolutes as I said, even at the risk of getting trolled.

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Vishwanathan: If this argument is taken to it's logical conclusion- then you shouldn't save money, vote- because all that is for the future generation and you can't procreate!

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Vishwanathan: LGBTQ parents are as qualified to rear children as the heterosexual parents.

CJI DY Chandrachud: Same sex couples seek the same benefits of marriage. There are a whole range of benefits that cohabitation and marriage provide.

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Justice Bhat: It's a gateway. It opens up so many possibilities, so many rights- those which you can enjoy. Those you cannot be part of, you don't.

Vishwanathan: But the choice- the choice should be available.

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CJI DY Chandrachud: Just in the case of heterosexual couples now with the spread of education, the pressures of the modern age, increasingly, couples are either childless or single child couples.

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CJI DY Chandrachud: Even popular countries like China are losing on demographic dividends. Young, highly educated don't want to have children - that's a matter of choice.

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CJI DY Chandrachud: People are moving away from the notion that you must have a boy.

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Vishwanathan cites judgements.

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Vishwanathan cites US courts judgments which upheld miscegenation laws which prohibited inter-racial marriages. Reads out passages to argue that the argument against same-sex marriages are similar to those arguments against inter-racial marriages.

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Vishwanathan refers to Transgender Persons (Protection of Rights Act) 2019. Points out that Act gives rights to transgender persons and says they can't be discriminated against.

Vishwanathan's briefing counsel : A trans person has the right to marry a person of choice irrespective of gender.

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CJI DY Chandrachud : Before you close, tells us your reliefs sought.

Vishwanathan : We have challenged the SMA as it does not recognise marriages other than heterosexual. Only way to save is it to equalise it, reading into the statute.

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Vishwanathan says that the recent Supreme Court decision in the Association of Old Settlers of Sikkim case, the device of reading into the statute was used to save certain provisions of the Income Tax Act.

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Vishwanathan : All that is needed is to add husband, wife or "spouse" in Special Marriage Act. Rest will follow. They (Govt) need to tailor it.

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Vishwanathan : On the age issue, in case the Special Marriage Act is to be interpreted, the default age be kept at 18 yrs for the third gender, keeping in view of the Indian Majority Act.

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Vishwanathan : If the fundamental right is recognized, the legislative law has to be suitably tailored.

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Arguments over for the day.

CJI reads out the names of lawyers to argue next - Geeta Luthra, Anand Grover, Jayna Kothari, Anitha Shenoy, Menaka Guruswamy, Saurabh Kirpal, Vrinda Grover, Karuna Nundy, Arundhati Katju, Raghav Awasthi, Shivam Singh, Namit Saxena & Manu Srinath

CJI DY Chandrachud says the arguments from the petitioners' side will be closed on Monday in any case and asks the lawyers to discuss among themselves on dividing the time.

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