Thread by @LawBeatInd

[Same Sex Marriage Recognition]

#SupremeCourtofIndia 's Constitution bench to continue hearing the pleas today.

#Samesexmarriage
#marriageequality
#SupremeCourtofIndia

Justices Bhat and Kaul are hearing the case virtually on account of being unwell.

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Justice Bhat: Who has included the whole judgment of #KesavanandaBharati in the submissions?

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Senior Advocate Geeta Luthra makes submissions.

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Luthra: I will be referring to the Foreign Marriage Act. Have submitted a three page note on my submissions.

CJI: So what are you going to argue?

Luthra: I will also be referring to 23rd Law commission report, that was the precursor to the Foreign Marriage Act.… twitter.com/i/web/status/1…

Luthra: The read in and judicial interpretation of SMA and Foreign Marriage Act (FMA). Also how the FMA is the extension of SMA.. The petitioners in my case are the only persons who are legally married in the USA. They were married in Texas, they have a 4 month old daughter. They… twitter.com/i/web/status/1…

Luthra: During COVID, spouses were being granted VISA, but they could not come to INDIA, because they were not issued VISA given to other spouses.

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Luthra: As per the FMA one of the parties is an Indian Citizen. I will refer to Section 17. Let me also refer to Statement of Objects of the Act.

Luthra reads.
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Luthra refers to Section 4, 9, 11 of FMA.

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Luthra: We are the only couple who are validly married according to local laws, and what a travesty it is that in a country which believes in the rule of law, I am being denied my rights..

Luthra now reads Section 17 of Foreign Marriage Act.

#Samesexmarriage #marriageequality… twitter.com/i/web/status/1…

Luthra: We went to the Marriage officer in Washington and got no answer.

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Luthra: The only ground on which they can refuse is that the marriage is inconsistent with international law. Today over 36 nations have accepted this concept, and the comity of nations principle should be respected by India.

#Samesexmarriage #marriageequality… twitter.com/i/web/status/1…

Justice Bhat: What are the conditions of marriage as per this Act?

Luthra: Section 4, Milord.

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Justice Bhat: What is prohibited degree of relationships as per this?

Luthra: Section 2 Milord.

Justice Bhat: What about proviso to Section 4, which says about permit under personal law? So personal law comes in here..

CJI: Also, prohibited degree of relationship is as per… twitter.com/i/web/status/1…

Luthra now reads Section 18 FMA on matrimonial reliefs.

Luthra: Great importance to my status. No one can brush it under the carpet and say you can have a live in relationships. A person has to be recognised under marriage if I have to get equality...

#Samesexmarriage… twitter.com/i/web/status/1…

Luthra: Now my next point is, the rights of citizens under the FMA. This Act envisages that foreign marriages would be registered if they are in accordance with international law. My rights cannot be vitiated because I live abroad. Look at the anomalies, I am a married person… twitter.com/i/web/status/1…

CJI: lest go to item 4 of your submission.

Luthra: That is on discrimination on ground of sex, sexual orientation.. Similar to how in many parts of the world women were not given any rights only because of their gender.. Also, I want to re-empasize that marriage is the oldest… twitter.com/i/web/status/1…

Luthra: The moment we realise that the #LGBTQ community also has rights.. we may be a small community, a minority.

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Luthra refers to Black's Law Dictionary, the definition of Comity of Nations.

Luthra: The yogyakarta principles have already been referred to in Navtej Johar judgment. I will just read it out.

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Luthra: There has to be a Constitutional comity, India cannot be lagging behind. 12 out of the G20 countries have permitted same sex marriages and about 34 countries in total. We cannot be behind, even if its one person. These rights include right of VISAS, passports, right to… twitter.com/i/web/status/1…

Luthra now refers to an Austrian judgment from the Austria Constitutional court.

Luthra: Austria had two parallel legislations, one for same sex partnership and the other was a marriage.

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Luthra reads from the judgment.

Justice Bhat: So there was separate body of law, pre-existing. When was this enacted, because this also has an aspect of personal laws.. I want the court to see the excerpt of the judgment which says that this was enacted in 2009..… twitter.com/i/web/status/1…

Luthra: Even the requirement to disclose that you come under same sex partnership was considered to be discriminatory..

CJI: Even there was different legislation in Austria on adoption and medical reproduction..

Justice Bhat: This is a civil law country, let us understand the… twitter.com/i/web/status/1…

Luthra: The fact is, we may be jump starting but we are too late in the day. We are lagging behind and our jurisprudence is seen across the world. I am only asking for one institution, that is Marriage, and I want that right..

#Samesexmarriage #marriageequality… twitter.com/i/web/status/1…

Luthra: Navtej had actually started the footprints and we have to take it further, it cannot be left halfway..

Justice Bhat: The wall separating the two in Austria was brought down, both couples could go for a marriage or a civil relationship..

#Samesexmarriage… twitter.com/i/web/status/1…

CJI: Ok thank you Mrs. Luthra..

Luthra: Just one para of the South African judgment. It was the interpretation of the immigration law.. Court said it was an unfair discrimination.

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Luthra continues reading from the judgment.

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CJI: We have seen it, thank you Mrs. Luthra.

Sr Adv Luthra concludes.

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Sr Adv Anand Grover is making submissions now.

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Grover: I want to make an argument on the aspect of intimate associations. That is considered a fundamental right in the US, along with privacy and the right to express freely. It is encapsulated under Article 19(c) under our constitution.

Grover refers to the judgment of Griswold vs. Connecticut.

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Grover: I am giving the court a gender glossary, because there is a lot of confusion on these norms.. There is a misconception that India did not have non heterosexual relationships.. that is completely incorrect.. In NALSA judgment that is why they said that it was prior to the… twitter.com/i/web/status/1…

Grover: Trans were considered by the Jains under a psychological parameter, unlike Hindus and Buddhists who considered them on physical aspects..

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Grover: Lord Rama asked all his followers to return to the city while he was going on vanvas, he asked all men and women to return, the Hijras did not consider to be bound by this and followed him..

CJI: We will read it.

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Grover: If I am a Cis-male and marry a cis-female, and then I convert into a female, the law recognises that marriage. It does not become void. Also in Kerala, they are encouraging such people who are married, they are being recognized.

Justice Kaul: There might be a… twitter.com/i/web/status/1…

Grover: On the third point, that it is for the parliament to legislate on this issue... I have been given a document which has kept a keen eye on the issues of LGBTQ dealt with in the Parliament, nothing has been done in the last five years.. Also, most of the runaway same sex… twitter.com/i/web/status/1…

Grover concludes.

Senior Advocate Jayna Kothari is now making submissions.

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Kothari: I have three points to make. Our claim is here for marriage equality for all persons, irrespective of gender identity and sexual orientation and we pray that is how this matter should be taken.

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Kothari: In Practise, despite NALSA, we still have to undergo medical reassignment to get our rights.. The right to family should be recognised as a fundamental right. The petitioner was born a male, she faced so much violence at her home..

#Samesexmarriage #marriageequality… twitter.com/i/web/status/1…

Kothari: The right to marry gives rise to a family, which is also to be recognised under Article 21.. marriage is one way in which we have a family. The family goes to the core of our being, it is essential to live a full life, they give us psychological and financial support..… twitter.com/i/web/status/1…

Kothari: The assumption of a family structure ignores the changing contours of a family. Should families where persons are trans can be denied of having a family life?

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Kothari: I have given a proposed reading of the SMA which replaces men and women with spouses. Therefore, I pray that all references should be changed to include all persons irrespective of sex, gender or orientation. The issue is ultimately marriage rights for all.… twitter.com/i/web/status/1…

Kothari concludes.

Court to hear Sr Adv Maneka Guruswamy after lunch.

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Sr Adv Maneka Guruswamy begins with her submissions.

Guruswamy: I am making 5 distinct points: contrary to what Union has advanced in counter it is important that in India where parliamentary form of govt is working.. parliament is constrained by constitution as interpreted by… twitter.com/i/web/status/1…

Guruswamy: 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 #KeshavanandaBharati case was all about..

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Guruswamy: The Indian parliament is a creature of the constitution and does not enjoy unfettered sovereignty.. This court has interpreted legitimate state interest in KS Puttuswamy, and these heightened requirements of national interest are not required in our case.… twitter.com/i/web/status/1…

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

CJI: You cannot dispute that Parliament has legislative power over what all is there in these… twitter.com/i/web/status/1…

CJI: So the question now is, if this is within the parliament's domain, till where can we exercise our power...

Guruswamy: The argument is simple this, that in these areas where there has been legislation, the SMA read in conjunction with the judgment of my lords like Puttuswamy… twitter.com/i/web/status/1…

Justice Bhat: That legislative vacuum had to addressed by the Parliament, it is a derivative right, not a wide right..you are saying there is general right to privacy.. you are knitting all that together..

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Guruswamy reads Article 17.

Guruswamy: The Constitution drafters made it incumbent on the Parliament to make a law..

Justice Bhat: It could be done without that too.. this is where the CJI's question is important.. How do we weave out a mandate or obligation..

CJI: Take… twitter.com/i/web/status/1…

Guruswamy: Adoption comes under the JJ Act now..

Justice Bhat: Lets not undermine the HAMA.. because there is importance in it as well..

Guruswamy: My assessment of Article 17 is that it mandates that a law be created by the Parliament..When I argued the RTE case, the then CJI… twitter.com/i/web/status/1…

Guruswamy: We have interpretative options available for this constitutional court. our basic structure is also intertwined with the #Kesavananda_Bharati_judgment . We are not distinct and devoid of it that we will not be read into the cases that follow Kesava... Article 32 is… twitter.com/i/web/status/1…

Guruswamy: Parliament is a creature of the constitution and is bound by it..

Guruswamy reads from the Puttaswamy judgment.

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Guruswamy: The thread of conscience being the test of fundamental rights has been given importance by Dr Ambedkar during the Hindu Code bill till 2017 in Puttuswamy..

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CJI: You should conceptually argue that how you are not trying to denigrate the concept and institution of marriage, but benefit from it.. this terrain is easier and will make the path ahead easier to cross..

#Samesexmarriage #marriageequality #SupremeCourtofIndia

Justice Bhat: Our job is to look at workability, of not just what you are showing us.. the hard task you are saying we will leave it for later.. but how many litigations will we see.. that will come to us or other courts..

CJI: The 35 statutes that you have given us.. they are… twitter.com/i/web/status/1…

CJI: We have come a long way ahead from the broader campus, this is now worrisome.. the jurisdiction of Article 21 is not even there..

Justice Kaul: If we get into the nitty gritty it will get very complicated, it will be a difficult exercise..

#Samesexmarriage… twitter.com/i/web/status/1…

Guruswamy: All that we humbly request is a reading into the SMA, then all these statutes would fall into place..

Justice Bhat: We also have to make it consistent with the other acts.. Look at Section 21(a), there is no question of shying away from this, the remit of this is very… twitter.com/i/web/status/1…

Guruswamy: My argument is that most civil laws would be covered by this court's declaration.. and that is the aim of the SMA..It is one law for all Milords..

CJI: Before the personal law was codified, Marriage and adoption were governed by custom and uncodified Hindu law, the… twitter.com/i/web/status/1…

CJI: There is no denying or getting over the link between SMA and personal laws..

Guruswamy: I am not trying to say separate but equal, but for now we are suggesting interpretative techniques..

CJI: It cannot be confined to SMA, it has to go beyond..

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

Guruswamy: Section 21(a) SMA recognizes that choice..

CJI: Under inclusive classification, parliament does not legislate just because it can legislate.. we have to see how we will craft such a solution.. there is lot of thinking to be done in this matter.

Justice Kohli: How do… twitter.com/i/web/status/1…

CJI: Can we suggest something, we have come out with our reservations, you may submit a note and we can break here.

Senior Adv Saurab Kirpal is now making submissions.

Kirpal: On the workability, if someone has challenged SMA alone, the court would look at it. If someone come… twitter.com/i/web/status/1…

Kirpal: We are asking for reading in and up.. normally an Act like this shall be unconstitutional, that would amount to throwing the baby out with the bath water..

Justice Bhat: You attribute an exclusion, the exclusion results in invalidation of the enactment, and you say this… twitter.com/i/web/status/1…

Kirpal: There is nothing unusual in what I am saying..Article 14 and 15 requires an examination of the effects doctrine, looking at the impact of a legislation is important, to say that we are attributing to an exclusion, we don't need to, its large.. I fail to see how we can… twitter.com/i/web/status/1…

Kirpal: The moment heterosexual people have a right, you cannot say that since we cant give you everything, so we will give you nothing.. judicial functioning happens through precedent..Constitution promised equality of sexes in 1950, are we still not coming to court over sex… twitter.com/i/web/status/1…

Kirpal refers to Section 4, SMA.

Kirpal: We are saying that any two persons can be anybody, homosexual or heterosexual..

CJI: We can say that section 4 was not meant to cover homosexuals..

Kirpal: Ofcourse it was not, but we cannot go by that, we do not have the doctrine of… twitter.com/i/web/status/1…

Kirpal: I am not saying that give me this right because someone else has it, I have found a wat to a right of that nature.. wie are not asking to do a interpretative exercise to the original meaning of the statute...

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Justice Bhat: Getting the right may not be a problem, a surmountable issue, but the nitty gritty, making it workable would be the issue.

Kirpal: Having found a right, you cannot say that because of legislative hurdles, your right is effaced... A workability argument is no part… twitter.com/i/web/status/1…

Kirpal: You allow lavender marriages where a gay man marries a heterosexual woman or a lesbian woman is trapped in a marriage. The Union is fine with it. How is the right of any heterosexual person getting affected by me seeking a right to marry? If all homosexuals, leave this… twitter.com/i/web/status/1…

Grover: The petitioners in my case are queer feminists and trans activists. These are marriage equality petitions. My case is about marriage and relational equality.

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Grover: The distinct issues in my petition relate to a declaratory relief. On the notice, domicile regime, we seek a striking down of those sections under SMA.

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Grover: I want to draw this court's attention to Section 3 of Transgender Act. My argument is that this Act neccisiates that SMA provides recognition to transgender persons.

#Samesexmarriage #marriageequality #SupremeCourtofIndia

Gover: I would like to refer to natal/family violence. Hair and clothes are markers of gender identity. The act of cutting hair or keeping the hair longer invites violence from the family. What paths do these people have? One is under SMA, the protection that they might get under… twitter.com/i/web/status/1…

Justice Bhat: There are two or three volume IV and V, very difficult to manage..

Grover: What we are canvassing is a new imagination of marriage and relationship, that places at its foundation love care and respect that does not come from the natal families.. One of my… twitter.com/i/web/status/1…

Grover: One prayer specifically refers to nomination, that I may be allowed to nominate my next of kin..I have also attached a glossary for referring.

Grover concludes.

CJI: Tomorrow we can give 45 mins to wrap up. Give us a page of bullet points to understand the formulation.… twitter.com/i/web/status/1…

Hearing ends for the day. Bench rises.

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