Thread by @LiveLawIndia

[Marriage Equality Petitions in #SupremeCourt - Day 4]

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

Follow this thread for live updates.

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CJI DY Chandrachud: We have hybrid constitution bench hearing today. Justice Kaul is recovering and Justice Bhat tested positive on Friday. So thank you so much brothers for joining us.

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Justice SK Kaul and Justice Ravindra Bhat have joined the bench virtually for the hearings today.

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Justice Bhat: Just to raise one concern- I noticed that some 4-5 things were uploaded. Entire volume of Keshavananda has been included. I don't think this is the idea of written submissions. I don't know how to handle this.

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CJI DY Chandrachud: Who included the entire volume? Ms Guruswamy you included the whole thing?

Justice Bhat: Ms Guruswamy, let's not make assumptions on ignorance...Your substituted written submissions run for 150 pages. One has to go over the same thing again and again.

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Sr Adv Menaka Guruswamy: I apologise. I didn't know the whole judgement had been included...there is no repetition in proceedings.

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CJI DY Chandrachud: This can be shortened. Written submissions can just have the core of the submissions.

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The counsels begin submissions for the day.

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Sr Adv Geeta Luthra: What is distinct about the petitioner 1 and 2 is that they're the only persons who are legally married in another country, that is, the USA. They have a four month daughter. They had a commitment since 2012, got married in 2017.

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Luthra: It is grossly unjust that they're free and equal in other countries but in country of birth of the first petitioner, they're invisible here.

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Luthra: Their rights are not recognised here. During COVID, visas were granted to spouses of Indian citizens. But not being recognised, petitioner 2 didn't get a visa. So while they're a married couple in US, they could not come to India during COVID.

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Luthra: What they had sought to do is get their marriage registered under Foreign Marriage Act. Please see the 23rd Law commission report.

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Sr Adv Geeta Luthra points out that Foreign Marriage Act applies even when one of the two persons in a couple is an Indian national.

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Luthra: There can be solemnisation under the act and registration under the act.

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Luthra: We went to Washington to the marriage officer and got no answer. So we wrote an email and they told us that since you're a same sex couple, we are not registering your marriage.

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Luthra: Today 34 countries have accepted same sex marriage. The country in whose local law I have been recognised is there so I'm recognised in international law.

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Luthra: There are only two conditions - one, it should be in accordance with international law...

Justice Bhat: It mentions about prohibited degrees. Where do we get what is prohibited degrees?

Luthra: 2(a).

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Justice Bhat: Proviso to Section 4 says that if personal law or custom governing atleast one of the parties permits marriage between them...so the personal law comes here then.

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Luthra: All matrimonial judgments because they deal with status of parties are judgement in rem.

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Luthra: They say how does it matter you can be in live in relationships. Live in relationships do not answer my status. My status as a person who is married has to be recognised if i have to get true equality.

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Luthra: They cannot be non married just because they're entering the soils of this country which upholds fundamental rights.

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Luthra: It is discrimination on grounds of sex- same way that in many parts of the world women were not given right to vote on basis of their sex. There is no distinction.

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Luthra: Being a social person, this is the oldest social institution. Marriage is an expansive evolutionary inclusive concept. At one time, inter racial marriages weren't recognised in the US. In India, inter caste marriages were not recognised.

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Luthra: Marriage is not a static concept. The moment we recognised that those of the LGBT+ community have right, they may be a minority but the majority cannot decide the rights of a minority.

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Luthra refers to the Yogyakarta Principles.

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Luthra: Constitutional comity, the fundamental rights, require not just comity of nations. There has to be a constitutional comity. India cannot be lagging behind.

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Luthra: 12 out of the G20 countries including the EU have permitted same sex marriages. About 34 countries of the world have done that. Virtually, every democratic, progressive country of the world has recognised same sex marriages. We cannot be behind.

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Luthra: Even if it is one person, even if it is one minority, we cannot deny them their rights. These rights include their rights of visas, passports, of right to live in India, rights of inheritance...

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Luthra: Every right flows actually out of this old institution which is recognised and has been reverred in our country. We can't just wipe it clean by saying it means nothing.

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Luthra: I will now show 3-4 judgments which are court led recognitions of same sex marriage. The issue that was raised was should it be by court or parliament. The constitutional duty of this court is to uphold constitution.

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Luthra refers to an Austrian and a South African judgment.

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Justice Bhat: There was 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.

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Justice Bhat: This is that kind of situation where there is a pre existing statutory platform. What is not very clear is when was this law enacted?

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Justice Bhat: This is like two systems of law. Let's understand the background. This is a civil law country where keeping aside the considerations of personal laws, this is more of an issue of classification.

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Justice Bhat: They say that you cannot treat them as separate classes. We're at a more fundamental stage, not legislative. So you want us to get into the second phrase and say there is no classification.

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Justice Bhat: Yes there is no classification as of now.

Luthra: What I'm asking is even that was against the equality principle. The fact that they had all the bundle of rights where i have no right. I want recognition of my marriage as an incident of 14,15,19,21.

Luthra: The fact is, yes, we maybe jump starting. But we're too late in the day. We have to come to that stage. India can't be lagging behind so much.

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CJI DY Chandrachud: So what was there in that judgement was there was a registered partnership for same sex couples and marriage for heterosexual couples. So they said that this restriction is discriminatory.

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Justice Bhat: The wall separating the two was brought down. Both kinds of couples could go for either kind of relationships.

Luthra: Yes.

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CJI DY Chandrachud: Now see the result. The relief which they grant gives us an idea of what was the issue.

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Sr Adv Luthra reads a South African judgment.

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Sr Adv Luthra concludes her submissions by quoting Edith Windsor - "Marriage is a magic word and it is magic throughout the world. It has to do with our dignity as human beings, to be who we are openly."

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Sr Adv Anand Grover: I will be arguing on "Intimate Association" from the US jurisprudence. I am representing two petitioners- one is under the Foreign Marriage Act where a couple of Indian origin, one of them is a citizen got married in USA.

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Grover: They came to India, both of them are Hindus. They tried to register their marriage here, they could not. Then they went back to the US and went to embassy to fill all forms. That wasn't registered, they weren't treated very well.

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Grover: The second petition is interfaith - Christian and Hindu under the Special Marriage Act.

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Grover: I will invoke the argument on intimate association of US based on the 14th, 19th, and 1st Amendment.

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Grover: This has been embraced in article 19(1)(c).

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Grover: The idea is that you can form associations- cooperative societies to trade unions, which are larger groups and intimate unions of a romantic or marital nature- and that is a fundamental right in the US coupled with free speech.

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Grover: There are three issues coupled in one and it is encapsulated under Article 19(1)(c) and obviously it is subject to reasonable restrictions.

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Sr Adv Grover takes the bench through some judgements.

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Grover: This right of intimate association can be read into Article 21. Apart from privacy, autonomy, and dignity, this can also be read into Article 21.

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Justice Bhat: It can only be used for the purpose of declaration. There is no legislative content to that.

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Justice Bhat: Because you had a large number of statutes which prohibited gay relationships or marriage, there were several state constitutions which enacted prohibitions - they were all outlawed.

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Justice Bhat: So one is a declaratory part, the second is the consequential part.

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Grover: The core is not to strike down the statute.

Justice Bhat: In order to say that these are unconstitutional, first it was necessary to declare that there is a right to marry.

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Grover (reads from a judgement): "Core principles and traditions demonstrate the reason the marriage is fundamental under the constitution apply equal force to same sex couples..."

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Grover: Same sex relations were prevalent before the British and even scriptures record it.

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Grover: If I'm a male person, cis male, I marry a woman, cis woman. During the marriage I transition and become a woman. The law doesn't say that the marriage falls. Certain states including Kerala are encouraging people who are married, they're being financed.

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Justice Bhat: In such cases other things are taken into consideration. There may be kids. If this is not preserved, that will lead to untoward, adverse effect on the members of that family. Then you're looking into a legislature that doesn't take into account realities.

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Grover: There has been arguments on other side that it is for parliament to legislate on this. Let us see on record - Pink list India has been observing what has been happening to LGBT rights in parliament. There has been no positive response in 5 years.

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Grover: Finally about elitism- Large number of people run away from home. The origins of those people are from small towns. They come to the capital city where HC is and they need protection.

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Grover: They're not elitist. This notion that it is elitist is incorrect.

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Grover concludes his arguments by quoting Kahlil Gibran.

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Sr Adv Jayna Kothari: I appear in the matter of Dr Akkai Padmashali v Union. This is the second petition by a transgender person. Our claim is for marriage equality for all, not just for same sex couples.

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Kothari: Transgender persons are persons whose gender doesn't align with the sex given at birth. NALSA judgement protected the right of self determining gender identity.

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Kothari: This court held that it is not only two genders - not only male or female but male, female, or transgenders who could identify as any even without medical reassignment.

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Kothari: The purpose of granting this right to self determine one's gender identity is to get legal recognition to a whole bunch of other rights including the right to marry.

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Kothari: The right of transgender persons to marry was also specifically recognised in NALSA.

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Kothari: In practice, despite the recognition of one's gender identity, transgender persons are unable to exercise their full legal rights for many reasons. One, despite NALSA, they still have to get medical reassignment to get documents changed.

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Kothari: There are intersex persons as well. My second point is that the right to family has to be recognised under right to life under A 21.

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Kothari: The petitioner, Dr Akkai Padmashali, was born male. She faced so much violence at her parental home that she had no other option but to leave her home at 14/15 years of age.

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Kothari: She was on the streets, begging. That is what so many Transgender persons have to do. They have no other option.

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Kothari: So what does the right to family mean? The right to marry has been upheld in a whole variety of judgements- Shaktivahini etc. The right to marry gives rise to a family which also has to be recognised as a fundamental right.

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Kothari: What does a family do? It goes to the core of our being. Our families give us not only love and care but also psychological and economical support. Can we not have the right to have our families recognised?

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Kothari: Transpersons are already having families - they're in relationships, adopting children but these families are not being recognised.

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Kothari: The Delhi HC in a 2021 judgement - in a case of heterosexual couple who didn't want children held- that this would come under Article 21.

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Kothari: Is a 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? Therefore, I argue that this should fall under Article 21.

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Kothari refers to international cases and treaties.

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Kothari: The special marriage act, and the manner in which it is construed presently, by focusing only on men and women denies transgender persons the right to marry and have a family solely on basis of their gender identity. That amounts to a 15(1) discrimination on basis of sex

Sr Adv Jayna Kothari provides with a proposed gender neutral reading of the Special Marriage Act.

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Kothari: I want to end with a reference from Navtej. Our arguments are for marriage rights for all. This was reiterated in Navtej by my lords.

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The bench has risen for lunch.

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Hearing resumes.

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Senior Advocate Menaka Guruswamy has commenced her arguments.

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Sr. Adv. Menaka Guruswamy: This was most the nerve wracking lunch of my life.

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Sr. Adv. Menaka Guruswamy: In India the parliamentary system is constrained unlike in England. Constrained by the constitution interpreted by the Judiciary.

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Sr. Adv. Menaka Guruswamy: The second point I'd like to raise is of judicial review which part of the basic structure doctrine.

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Guruswamy: The govt cannot come to court that this is a matter of the parliament. When our Article rights are being violated, we have the right to come to this court under Art. 32.
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Guruswamy: The Indian Parliament is a creature of the constitution and does not enjoy unfettered powers.

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CJI Chandrachud: You cannot dispute that parliament has the powers to interfere with the canvas covered by these petitions. Entry 5 of the concurrent list. It specially covers marriage and divorce.

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CJI Chandrachud: So the question really is which are the interstices left in which this court can interfere.

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CJI Chandrachud: So comparing this with the British parliament may not be a correct one.
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Justice Bhat: When you are casting a positive obligation on the lawmakers. Is it possible to presuppose the creation of law? How do we weave out an obligation or a mandate?

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CJI Chandrachud: Even in the context of privacy in puttuswamy or in the Vishaka case, the framework set out by the court has to be fleshed out by the legislature.
The test really is, how far can the courts go?
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CJI Chandrachud: the counsel who follow you should also address us on this.

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Guruswamy:
My lords have been the north star in many cases, pre the legislature walking the talk. We dont ask for anything special today. We are only asking for a workable interpretation of the Special Marriage Act.

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Guruswamy: The basic structure also belongs to us. We are also part of its soul. The parliament cannot be the reason to exclude us from this guarantee under the constitution.

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Justice Bhat :Coming to the task of re-enacting other laws. How many times are we to play follow up? Where does it stop? Is this our job? Ultimately that's the question we come back to.

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CJI Chandrachud: The jurisprudence of Art. 21 are established, you need not get into that.

Justice Kaul: Getting into the nitty gritty, it is a difficult exercise to create different rights.

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Justice Bhat : If we read into the SMA, there will have to be changes in other personal laws as well. There is no shying away from this.

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CJI Chandrachud: The SMA carved out an exception, by being neutral to religion. But Section 21(A) of SMA, indicates that all other parts of marriage are governed by personal law.
There is no denying the link between SMA and personal law.

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Guruswamy: There is no denying that milord. But It will follow.
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Justice Bhat: we don't believe Parliament is going to enact anything.

Guruswamy: I don't believe that either my lord.

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Justice Bhat: are you truly representing the people before us? There is diversity. There may be unheard voices who may want to preserve their way of life. They may not want to break their traditions.

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Guruswamy: Those who wish to participate in this new definition of relationship can participate. Those who don't want to, need not. Within the community, there may be people who may not want to participate.

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Guruswamy: The ability to have the choice is an act of Constitutional principle and 21A of SMA gives all couples that choice.
We don't ask for anything more than that.
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CJI Chandrachud: May I suggest one thing. We have placed our perspective on certain issues. You can deliberate on this and give us your note on this.

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Guruswamy concludes her arguments.

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Adv. Saurabh Kirpal has commenced his submissions.

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Adv Kirpal: We have to address the elephant in the room. In terms of workability of issue, question is how far and how much we have to go. It may mean a lot for us personally and for many other people. At the end of the day, someone has challenged the provisions of SMA alone.

Adv. Kirpal: Normally an Act like this would be unconstitutional since it would be hit by Art 14. But my lords would not do that.

CJI Chandrachud: Striking down SMA doesn't benefit you
Kirpal: exactly milord.

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Kirpal: The way SMA is operated today is any two persons can get married as long as they're heterosexual. There is clear discrimination on ground of sexual orientation.

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Kirpal: Question is can law countenance this. I would submit the moment heterosexual people have a right, you cannot say that we can't give you everything so well give you nothing.

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Kirpal: It may end up being all, and I hope it does, but that doesn't mean we don't take the first step.

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Kirpal: Doctrine of reading in is not some form of finding original intention and giving effect to it. We don't have doctrine of original intent in our constitution. We have to ensure it's a living document.

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Kirpal: We are not indulging in interpretive exercise to understand what lawmakers in 1954 thought.

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Kirpal: Coming to nitty gritty v recognition of rights. Having found a right, you cannot say that legislative drafts do not allow it. Effectively saying, you have the right to marry but it is not workable.
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Kirpal: The argument is basically that we will leave you to the mercy of the parliament. But the parliament has shown us in the last 75 years that when it comes to the LGBTQIA community, they will not act.

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Kirpal: In Hindu Law, marriage is sacrosant. Then by the logic of the other side, divorce should also not be permitted to strengthen marriage.
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Kirpal: If non heterosexual are prevented from marrying, what happens? In our society, lavender marriages would occur. Two lives would be ruined. There's nothing more detrimental than a gay man marrying and cheating a lady that way.

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Kirpal: There's also gay brain drain caused because of this. The best minds all leave the country to secure their freedom outside the country.

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Advocate Saurabh Kirpal concludes his arguments.

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Advocate Vrinda Grover begins her submissions.

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Grover: My petitions cover broadly two groups - queer activists, and couples in relationships involving Trans persons and cis heterosexual persons. My particular petition is about marriage and relational equality.

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Grover: There seems to be an assumption that families would necessarily be supported. But primary source of violence is the natal family.

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Grover: There is evidence, that persons from marginalized groups continue to approach courts to get married under the SMA.

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Grover: Section 3 of the transgender act necessitates the marriage of transgender persons under SMA.

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Grover: People who experience violence from their natal families, marriage would provide the necessary legal shield for such persons.

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Grover: A study says that several transgender persons who went home due to covid, were subjected to all kinds of violence from families. That is why this form of chosen family becomes important.
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Grover: In my case, petitioner no.1, is now left with a family who does not understand or respect her sexual orientation. She is also suffering from an illness. She needs persons who will take decisions that are in her best interest.

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Grover: Intimacies are formed which may or may not be conjugal in nature. But these are chosen families.

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Grover: We are canvassing before this court a new imagination of marriage and family which is based on love, care and respect. This may not come from the natal family, which is well established from several studies.
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Grover: One prayer sought for, is I may be allowed to nominate as kin, a member of my chosen family.

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Advocate Vrinda Grover concludes her submissions.

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CJI Chandrachud: We will resume tomorrow morning at 11 AM.

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Bench rises for the day.

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