Thread by @barandbench

[Same Sex Marriage Hearing] DAY 4

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

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

Track this thread for live updates👇 #samesexmarriage #LGBTQI #gayrights

DAY 1: Notions of man, woman, genitals do not define gender in absolute sense, Supreme Court says
rb.gy/jdv58

DAY 2: Argument that children of same-sex married couple will be impacted incorrect; gay, lesbian persons can already adopt individually: Supreme Court… twitter.com/i/web/status/1…

Hearing to resume now
3 judges to sit physically and hear the case
2 judges will sit from their respective residences by virtual mode
#samesexmarriage #LGBTQI #gayrights

CJI: We are having a hybrid constitution bench today. Justice Kaul had a fall and Justice Bhat is recovering from COVID. Justice Kaul please let us know. if you want a washroom or water break so that you do not have to sit on a stiff position for long. We can take a short break… twitter.com/i/web/status/1…

Sr Adv Rakesh Dwivedi: Today i am also digital .. i have COVID at home...

CJI: Oh

Justice Bhat: want to flag something... there were volumes filed last night and entire keshavananda judgment has been included.. this could have been avoid.. how can this be handled.. let us not… twitter.com/i/web/status/1…

CJI: Purpose of having a common compilation is that you just refer to the judgment and let us know..we can then refer to the law reports.

Sr Adv Geeta Luthra: what is distinct about petitioner number 1 and 2 is that they are legally married and they were married in the USA.. they have a 4 month old daughter.... here in India they are invisible and their rights are not recognised.. during covid visas were granted to… twitter.com/i/web/status/1…

CJI: So foreign marriage act says it is applied when one person is an Indian national. show us the relevant provision

Luthra: please see the objects and reasons.

CJI: Sure #samesexmarriage

Luthra: the petitioners are validly married under the local law. But what a travesty this is that a country where there is robust fundamental rights but I am being denied all of these rights. #samesexmarriage

Luthra: this is the reason in FMA... it says "The Marriage Officer may, for reasons to be recorded in writing, refuse to solemnize a marriage under this Act on the ground that in his opinion, the solemnization of the marriage would be inconsistent with international law or the… twitter.com/i/web/status/1…

Luthra: FMA Section 4: Conditions relating to solemnization of foreign marriages.—A marriage between parties one of whom at least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the… twitter.com/i/web/status/1…

Justice Bhat: where do we get which relationships are prohibited.

Luthra: it is as under Section 2A...

Justice Bhat: But see the personal law permitting point is there.. so personal law has come into place...

CJI: but is it not an exception

Justice Bhat: but Chief that is… twitter.com/i/web/status/1…

Luthra: no one can brush my rights under the carpet. my rights as a citizen cannot be denied just because i am living abroad.. once we come to this country we become strangers.. just because my fundamental rights have not been given effect to and my rights are trampled upon and… twitter.com/i/web/status/1…

Luthra: discrimination is happening on my sex and on the basis of the sex of my partner. It is discrimination on the grounds of sex. marriage is the oldest social institution.. man is also a social being and COVID has shown how difficult it is to live alone... at one time… twitter.com/i/web/status/1…

Sr Adv Luthra quotes from John Stuart Mill:

“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”… twitter.com/i/web/status/1…

Luthra: constitutional comity does not just require a comity of nations and India cannot be lagging behind.. #marriageequality #SameGenderMarriage

Luthra: 12 countries out of G20 has allowed same sex marriage. we cannot be behind even if its just one person and we cannot deny them their rights.. these rights include visas, passports and rights to live in India.. also rights of inheritance .. we cannot just wipe these rights… twitter.com/i/web/status/1…

Sr Adv Luthra takes the bench through a series of judgments to show how courts have allowed same sex marriage

First case is the Australia one where there were two parallel legislations existed.

Justice Bhat: i want to draw the attention of court to a a separate body of law which formulated the civil relationships to be registered. So first there was a body of law like in England. In England also there were civil partnerships from 2004..so this is a civil law… twitter.com/i/web/status/1…

Luthra: I am only saying there should be one institution that is marriage..we cannot be left halfway from Navtej judgment.. our rights cannot be denied..

Justice Bhat: their both same sex and heterosexual couples could go for civil unions..

CJI: you can see what happened the… twitter.com/i/web/status/1…

Sr Adv Anand Grover: I will be focussing on the theory of intimate association of the US. One of my petition is by Hindus who were based abroad and the other one is an interfaith couple where one is a Hindu and one Christian... #SameGenderMarriage

Grover: apart from privacy, autonomy and dignity that has been read into Article 21.. can this also be read into it... it is crucial #SameGenderMarriage

Justice Bhat: that is the point I made..US had a large number of statutes which prohibited same sex relations and that was outlawed and in the course of that they said they have a right to marry.. so one is a declaratory part and one is limited to relief #SameGenderMarriage

Grover: in the counter filed by Centre it is like there was no same sex relation in India before the advent of the Britishers. This is wrong. this was prevalent and even scriptures record it. After the British we have imbibed the disgruntlement of the British towards transgenders… twitter.com/i/web/status/1…

Grover: what if the legislature does not take note of it...

Justice Bhat: we have a plural and diverse society and here if the legislature does not look at it then it is not taking into account the social realities #SameGenderMarriage

Grover: large number of couples are running away from the homes.. a large number of the people are from small towns.. they need protection.. i am handling a case where 2 women have come from a rural area and they do not have place to stay.. they are poor and they are from small… twitter.com/i/web/status/1…

Grover: they are not elitist and this notion that same sex marriage is an urban elitist concept is an incorrect one #SameGenderMarriage

Meanwhile in Justice Krishna Murari's court:

An advocate states that the Bar Council of India has made a request to intervene in same sex of marriage

Justice Murari: this is not for here but for court 1

Adv: here elected representatives of the Bar Council are not… twitter.com/i/web/status/1…

Sr Adv Jayna Kothari appears for Indian Transgender activist Akkai Padmashali: we are for equality of marriage of all persons irrespective of gender, sexual orientation.. first I am on transgender person right to gender identity.. #SameGenderMarriage

Kothari: right to family has to be recognised under right to life.. the petitioner was born as a man and he was left on the roads and was forced to leave their home.. the right to marry has been upheld in a host of judgments.. but the right to marry gives rise to a kind of family

kothari: Transgender persons are persons whose gender doesn't align with the sex given at birth... marriage, procreation, life partner choice is all separately referred to my lords #SameGenderMarriage

Sr Adv Kothari: the notion that a family always has a father and mother may not be correct since there are situations where one spouse has died or that they are separated... but none of this situation is different than the heterogenous ones.. is a family different just because… twitter.com/i/web/status/1…

Kothari: right to family is recognised under article 21 and thus right to marry also has to be granted to same sex couples... special marriage act can be read to mean husband and wife as spouse and man and woman as persons.. #SameGenderMarriage

Kothari refers to the Navtej Johar judgment

Kothari: is family different just because your gender identity is different? Are these not the same values that all of us want at the end of the day? Thus all of this has to come under article 21

Kothari: I have submitted an article for the Cardozo Law Review.. this is for your reference..

CJI: Thank you Madam Kothari

#samegendermarriage

The second session of the Day 4 hearing in #SameGenderMarriage case to begin at 2 pm #SupremeCourtofIndia

Sr Adv Menaka Guruswamy: I am laying down 5 distinct points: contrary to what inion has advanced in counter it is important that in India where parliamentary form of govt is working... In India.. parliament is constrained by constitution as interpreted by this court

Guruswamy : saying that leave it to the parliament is not in accordance with the constrained approach of the Indian parliament and it is like thrusting the British parliament which is sovereign. #SameGenderMarriage

Guruswamy: We the people gave ourselves the constitution... Centre cannot come here and say that this is a matter of parliament since our fundamental rights is part of the basic structure and this is what the 50 years of keshavananda bharathi case was all about and these 50 years… twitter.com/i/web/status/1…

Guruswamy: this court has interpreted legitimate state interest in KS Puttuswamy verdict. No one in these cases does the state require these heightened requirements.

Guruswamy: pension to judges etc are all based on spousal relationship based on marriage and we are denied of all of this. marriage is also a matter of conscience under Article 25 of the Indian constitution.

CJI: the point really is that the canvas covered by these petitions fall under the domain of parliament and that it cannot be denied if you see entry 5 of concurrent list. So the issue of thrusting the British parliament etc may not arise. By virtue of Article 346 read with entry… twitter.com/i/web/status/1…

Justice Bhat: When you are casting a positive obligation on the lawmakers..look at Article 17. Can we presuppose the creation of law? We are in a situation where there is no civil rights act.. so how do we intervene.. we are one step forward and one step backward...both things… twitter.com/i/web/status/1…

Guruswamy: text of Constitution made it incumbent upon the legislators to have a law..

Justice Bhat: in absence of that term it was possible for parliament to create a law.. what you are saying that unless we create an obligation.. there cannot be a law..

CJI: Puttuswamy arose when the aadhar case came and then then AG Mukul Rohatgi said there is no right to privacy. That is why we said a draft bill should be brought in... We took note of the committee which was formed and we said that we have been assured. Even In Puttuswamy… twitter.com/i/web/status/1…

CJI: test really is how far can the court go. There is no doubt that adoption, inheritance etc are all governed by the personal laws.

Guruswamy: Juvenile Justice Act is a neutral law and adoption is permitted

Justice Bhat: but there is no other law apart from the JJ Act

Guruswamy: we have interpretative tools available to this court.. we only seek a reading which is consistent with what was lay down in Keshavananda Bharti or minnerva mills.. we are part of we the people,.. basic structure also belongs to us and parliament cannot exclude us from… twitter.com/i/web/status/1…

Guruswamy: by insulating fundamental rights from the whips and vagaries of majority and minority from 1952 onwards to 2017.. the thread of conscience as a test for fundamental rights is a hallowed conept and chairperson of drafting committee felt so and my lords felt so.

CJI: If we substitute man and woman as person and husband and wife as spouse... then can we stop at that.. what if two Hindu men married or two hindu women married.. then what will happen to intestate succession... when a woman dies there is a different line of succession.. so… twitter.com/i/web/status/1…

Justice Bhat: if we adopt the course that you are asking us to do.. then you see that a spouse who is not a spouse under a personal law but is a spouse as per our reading.. then surviving spouse will be left with nothing.

Justice Bhat: just because we do not get into personal law issues since it is a thorny one.. but how many follow ups will we play... the major task of re-enacting other laws.. who will do it? is this our job? that is the final question. #samegendermarriage

CJI: To accept these submissions we will say let the benefits devolve upon same sex couples but then we are asking it to leave out the people for whom it was actually intended.. so court is giving a value judgment on who will be excluded at the end of day...look at payment of… twitter.com/i/web/status/1…

Guruswamy: the moment we are read into the SMA all these benefits will apply to us

Justice Bhat: please look at Section 21(A) of the SMA. It is to preserve the application of personal laws.. there is no question of shying away from this.

CJI: the argument that we only confine this to special marriage act.. it is like we serve the opportunity the ones who would have wanted to marry as per their own custom.. so in way we will aso exclude the, for example there are 2 hindus or 2 christians

Justice Bhat: are you… twitter.com/i/web/status/1…

CJI: Judicial review is never under inclusive as a concept.. both in terms how will craft a solution.. there is a lot of thinking to be done in this matter..

Justice Hima Kohli: how do we define.. how far and no further..

Sr Adv Saurabh Kirpal: When there is an infraction of fundamental rihgts court have to step in ... court has to hold that we have a right to marry.. if this was the case with heterosexual couple.. then the act would have been struck down.

Kirpal: by failing to recognise marriage equality and not recognising this right... We have to address the elephant in the room. In terms of workability of issue, question is how far can we go. There is clear discrimination as the SMA is read which shows non heterosexuals cannot… twitter.com/i/web/status/1…

Kirpal: in the march of constitutional law.. the court cannot say how far... the court has to decide the lis.. hear the contentions and deliver a judgment.... we can come on case to case basis and there is nothing unusual about it

CJI: can we say that the intent of section 4 SMA was to recognise same sex marriages?

Kirpal: ofcourse no, it was in 1954..

CJI: Can we say instead... see the Hindu Code bill had envisioned equal tights for womem.. can someone who is Muslim say that we have to be treated in… twitter.com/i/web/status/1…

Kirpal: tomorrow parliament will come and say that laws being passed which completely in violation ..if my rights. So giving us rights which is not workable has no use. #samegenermarriage

Kirpal: there are also lavender marriages... where a gay man marries a woman without revealing sexual orientation then it is cruelty of highest form but it is permitted since they are of opposite sex..also the issue of brain drain takes place if LGBTQ members have to leave the… twitter.com/i/web/status/1…

Adv Vrida Grover: I pray for a declaratory relief... to show the level of familial violence suffered by these people and these people come to this court for specific orders etc..then I am on transgender act necessitates that under special marriage act a transgender person marries… twitter.com/i/web/status/1…

Grover: There is also an assumption that families would necessarily be supportive but the source of violence is the natal family and I will show such cases where 31 persons had testified such people coming from rural areas on violence suffered at the hands of natal families

Grover: long hair and how we dress up plays a part in identifying oneself... if hair is cut short there are consequences like stop schooling, marriage at 14 or even corrective rape. let me read only one example..

Grover: if the marriage is recognized under the special marriage act then it will give them protection which natal families did not... next both family and marriage is based on experiences..due to hostility of the families.. they are often into non conjugal intimate relations..

Grover: during COVID when trans persons went back to their home..some were subjected to forced conversion therapy and violence at the hands of their natal families. what we are canvassing before this court is a new imagination of marriage, family and love care respect is the… twitter.com/i/web/status/1…

Grover: why Do I need this chosen family.. I actually had to visit one person in jail for intimate relations. one prayer specifically says let me nominate the chosen partner as next of kin. I urge that safe houses and shelter homes for queer people are also created like the… twitter.com/i/web/status/1…

CJI: We have already heard 11 counsels this side.. so another 45 minutes tomorrow and 11:45 am we will start hearing the solicitor general Tushar Mehta
#samegendermarriage #SupremeCourtofIndia

Justice Bhat: you have cited recognition of hijra gharanas.. is there documented marriage among transsexual persons.?

Grover: i will place that on record

#SupremeCourtofIndia

Day 4 proceedings in the same sex marriage case concludes
#supremecourtofindia