Thread by @LiveLawIndia

[Marriage Equality Petitions in #SupremeCourt - Day 5]

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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To read about the first four days of the hearing and other relevant developments relating to the marriage equality petitions, click on the link below.

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livelaw.in/tags/same-sex-…

Constitution Bench assembles. #CJIDYChandrachud, & Justices Hima Kohli & PS Narasimha are physically present in court. Justices Sanjay Kishan Kaul & S Ravindra Bhat have joined virtually on account of their health.

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#CJIDYChandrachud: Now that we are dealing with CB...We have to have some cut-off. Otherwise material becomes difficult to deal with. (Talks about volume of written submissions)

Also indicates that petitioners would finish by 12.

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Adv Karuna Nundy begins. @karunanundy

"I seek declaration that includes my rights as queer, non-heterosexual & same sex people to marry other secular legislations, Special Marriage Act, Foreign Marriage Act..."

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Nundy: ...& provisions for OCI cardholders only under Citizenship Act that constitution a self-contained part to grant entitlements based on registration...recognition of foreign marriages...

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Nundy: 99.9% people who apply under Special Marriage Act fall in the gender binary & are men or women, whether they are queer, trans, or straight. 2011 census shows 4.8 million trans people...been demonised in society.

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Nundy: Census figures of trans people a huge underestimate. Many of them here in this courtroom...I mention this because they have been demonised. Muskan Tibrewala who has rendered assistance is one such person.

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Nundy talks about certificate of identity issued to trans persons.

#CJIDYChandrachud: You say Rule 5 already recognises marriage of trans persons, where do we get that?

Nundy: More that the form acknowledges.

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Nundy points out section saying 'Spouse of' in identity form.

CJI: Person who is in marital relationship can seek gender reassignment.

Nundy: Or self-declared identification. After they transition, marriage continues to subsist.

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Nundy: Many seek divorce. Many do not even after persons transition.

Bhat J: Law accommodates them because these are not grounds for nullity or divorce. There are other ramifications...children, dependents, etc.

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Kaul J: Are you saying that because such marriages subsist, that it itself amounts to permission for such marriage subsequently.

Nundy: Point is, state already recognises some trans marriages...these marriages are pre-existing.

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Bhat J: If your arguments are built around the forms, you will have to go forward.

Nundy: Elite...

#CJIDYChandrachud: Elite argument can be set aside. Matter of prejudice. Does not determine how we rule on a constitutional issue.

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Nundy: Law recognises under S.2(k) the range of gender identity. There is also a broad non-discrimination provision...This is not happenstance. Because of NALSA judgement.

Bhat J: Also encapsulated u/A.15.

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Nundy: There are some trans marriages which are allowed to subsist. But others are not recognised because of a lack of certificate or the timing.

Bhat J: Distinction....One is marriage between man & woman at the time of marriage.

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Nundy: Two doctrinal principles to be applied for a minimal reading in. First, husband & wife should not be collapsed into one category...should not be one category 'spouse'. This is because of heightened protections given to women.

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Nundy: 'Third gender spouse', or 'non-binary spouse' may be used.

Bhat J: First you said that you don't want neutral word like 'spouse'.

CJI: Tabulated statement seeks to interpose 'third gender spouse' in relevant provisions.

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Nundy: 'Third gender spouse' has been critiqued by the community. I used it because it was used in NALSA judgement. As an alternative, 'non binary spouse' may also be used.

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Nundy: Second, heightened protection to be provided for non-binary or transgender person due to the fact that NALSA requires state to provide special protection & affirmative action...historic discrimination.

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Nundy: Should this court only read Special Marriage Act inclusively, an immediately Art 14 anomaly arises. Foreign Marriage Act is pari materia.

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Nundy: If FMA does not follow SMA being read gender inclusively, such marriages, that take place abroad, will not be recognised here, even though SMA would grant marriage equality.

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Nundy: I am also representing a group which no one else is. Left in Catch 22 situation. Some of us are married OCI persons with families who choose to live here, others with deep roots here.

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Nundy begins telling bench about OCI couple.

#CJIDYChandrachud: Provision does not become suspect because it causes injustice in individual cases, have to be looked at from larger perspective.

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Bhat J: No one else has outlined facts, if that is to be done, we would relegate...

Nundy : I am on constitutionality, the hardships are merely supportive argument.

Takes court through case law & concludes.

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Advocate Arundhati Katju begins her argument. Notably, her partner and senior advocate Menaka Guruswamy argued for marriage equality yesterday. @arundhatikatju

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Katju: You cannot decide all questions today...gratuity, as Your Lordships did yesterday, pension...any number of benefits & obligations that flow from marriage. These are complex statutes.

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Katju: LGBTQ couples will come to courts with claims, as these issues arise, just as heterosexual couples have, from the time codification of matrimonial laws began. We are no different, and we ask for the right to not be different.

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Katju: We ask that our differences are ameliorated by our inclusion under this one statute. A declaration would go a long way in easing work of courts below as they embark on statutory intepretation.

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Katju: We seek first, a positive declaration that marriage solemnised under SMA & parties to such marriage will be entitled to all rights & obligations, notwithstanding gender identity & sexual orientation.

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Katju: We also seek a negative declaration binding the state to not deny rights & obligations to married couples whose marriage has been solemnised under SMA, only on ground of sexual orientation or gender identity.

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Katju: In terms of application of statutory application, S.21A will apply with same force that it does to heterosexual couple.

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Bhat J: Various permutations possible when same-sex couple is also interfaith...Gives rise to complications in terms of application.

Katju: All aspects that arise before this court, are not clear today, will be settled eventually.

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Bhat J: Organic whole has to be considered in statutory application. You have argued many battles will be fought later. Does it absolve us of our constitutional obligation of doctrinally considering impact of provisions inter se?

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Nundy: Section 21A must continue to apply to Hindu LGBTQ couples, can be no per se exclusion of Hindu couples who choose to remain within their faith...In 50 yrs, this provision has not created any difficult.

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Nundy: Your Lordships should not presume any difficulty which arises for LGBTQ couples. Union says such couples would play havoc with personal laws. But we are part of our community & our society.

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"Centre says this would play havoc with personal laws. But we are also part of our community & our society. Our parents also long to see the day we get married. Let us be blessed just as any other couple," says Adv Arundhati Katju.

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Nundy: Let us be blessed just as heterosexual couples are...Not elite at all. So many people have called me...from Hissar, Chhattisgarh, Surat...Let the union bless us just as they do any other couple.

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Nundy: When it comes to the question of having children, it is true that not all couples choose to procreate. But, as a married couple, having a child is part of human experience...Something that [queer] couples may long for.

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Adv Amritananda Chakravorty begins her submission.

"Restricting joint adoption only to heterosexual couples is discriminatory. They have the option to marry, but LGBTQ couples don't. Discrimination based on sexual orientation."

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Chakravorty: I will show that CARA circular even bars queer persons in their individual capacities to adopt. They are prevented from adopting because they are in a live-in relationship with their partner.

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Chakravorty: Children, orphans...have right to have a family. Exclusion of same gender couples & transgender persons defeats very purpose of adoption which is to provide a stable, loving family.

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Chakravorty: Is it in the best interest of the child to not have a relationship with their second parent? Petitioners are part of historically oppressed minority...deserve as much dignity & protection as opposite sex couple.

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Adv Raghav Awasthi: My marriage was registered in Denmark. My petition seeks declaration relating to S5 of Hindu Marriage Act.

#CJIDYChandrachud: We cannot discuss this in 5 mins, have scrupulously excluded this aspect.

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Awasthi: No interference of customary religious authority, neither is customary religious ceremony mandated. Their faith in ceremony to get marriage validated, but not us discriminatory.

#CJIDYChandrachud: Will leave it at that.

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Adv Shivam Singh argues about innateness, and how centre using it as an opportunity to discriminate is unconstitutional.

"To discriminate on basis of this parameter does not pass constitutional muster. These cannot be changed."

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Singh: Conferral of these positive rights is not a zero-sum game. It is not being granted at the expense of someone else. The union's only argument is that it runs contrary to social morality & public morality.

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Singh: Argument about social & public morality amorphous...Counter-affidavit proceeds on hurtful basis...Also, merely because this has been the case does not mean it should continue.

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Adv Manu Srinath: Exercise of judicial review is court's duty...duty to do organic construction of laws of land, to achieve social justice...such exercise increasing pool of beneficiary would not amount to legislation by court.

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Sr Adv Jaideep Gupta, appearing for intervenor Queer Collective of Indian Institute of Science, begins his submissions.

"First, difference in marriageable age should not come in the way. Child Marriage Bill already tabled."

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Gupta: Second, persons of this sexual orientation are being forced into heterosexual marriages. What is worse, there are people who are suggesting conversion therapy...Like this can be medically 'corrected'.

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Gupta: Marriage equality will ensure they will be protected from forced marriages & conversion therapy...Thirdly, misconception to say family values Indian cherish will be affected.

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"It is a misconception to say family values Indians cherish will be affected. It is because of these family values that they wish to get married. All values we cherish will come into effect," Senior Advocate Jaideep Gupta says.

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Gupta: Fourth, discriminatory to have legislation which makes a distinction. Fifth, if question of why is answered in favour of petitioners, in order to prevent invalidation of legislation, would be necessary to read it purposively.

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Intevention on behalf of a trans Bollywood actress who got married after undergoing gender affirmation surgery & has litigation pending with husband relating to domestic violence, S498A, & dissolution of marriage u/S13, HMA.

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Counsel: This judgement may have direct impact on my ongoing litigation. HMA per se does not prohibit these kind of marriages. Neither renders them void or voidable.

#CJIDYChandrachud: Won't go into personal laws aspect.

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Kohli J: Can't go into specifics of each case.

Counsel: Alright. Then let me request that those persons who have undergone the surgery & now conform to the biological yardstick, may be entitled to equal protection under law.

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After hearing two other intervenors briefly, Constitution Bench rises. Solicitor-General Tushar Mehta to make his arguments after lunch.

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Solicitor-General Tushar Mehta begins his submission.

"This is a complex subject having profound effects. I would reiterate that this court should leave these questions to the Parliament."

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SG Tushar Mehta: Real question is, who would take a call between what constitutes marriage between a particular class of people. So, what constitutes marriage & between whom.

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SG Tushar Mehta: There are several ramifications not only on society, but also other statutes, which would need debate in society, in state legislatures, in civil society groups. This has to be preceded by some debate.

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Corrigendum

Adv Arundhati Katju: Section 21A must continue to apply to Hindu LGBTQ couples, can be no per se exclusion of Hindu couples who choose to remain within their faith...In 50 yrs, this provision has not created any difficult.

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Corrigendum

Adv Arundhati Katju: Your Lordships should not presume any difficulty which arises for LGBTQ couples. Union says such couples would play havoc with personal laws. But we are part of our community & our society. #LGTBQIA #SupremeCourtofIndia #SameSexMarriage

Corrigendum

Adv Arundhati Katju: Let us be blessed just as heterosexual couples are...Not elite at all. So many people have called me...from Hissar, Chhattisgarh, Surat...Let the union bless us just as they do any other couple.
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SG Tushar Mehta: I have provided 160 provisions in various statutes, not just SMA, which would be irreconcilable with the prayer of petitioners.

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Corrigendum

Katju: When it comes to having children, not all couples choose to procreate. But as a married couple, having a child is part of human experience...Something that [queer] couples may long for. #LGTBQIA #SupremeCourtofIndia #SameSexMarriage
@arundhatikatju

SG Tushar Mehta: Our laws also conventionally recognise 'man' & 'woman'. I know diff between gender & sex, sexual orientation & gender identity. I am talking about law as it defines. Should any change not be legislature's domain?

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SG Mehta: No value judgement here, no stigma. Parliament has accepted rights of choice, autonomy in terms of sexual preference, & privacy. Only question is whether they can seek legal recognition of marriage through judicial review.

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SG Mehta: Mere declaration that they have a right would be begging the question. If they have a right, how would those rights be regulated? Only Parliament can take care of these. Would request you to leave this exercise here.

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SG Mehta: Right to marry is not absolute, you cannot force Parliament to devise new conception of marriage. The Parliament may choose to do so. There is no absolute right to marry, even between heterosexual couples.

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SG Mehta: There are prohibitions relating to age of marriage, bigamy, who you can and cannot marry. Once law recognises this sociolegal institution, you cannot walk out of that. Even how to separate is legislatively regulated.

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SG Mehta: Let's come next to privacy. There are exceptions, such as impotence, which is a ground for divorce...very personal & private. Once legislative recognition given to particular form of union, comes with several regulations.

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SG Mehta: Only Parliament can envision several situations that may arise & provide for its regulation. It would be impossible for the court to conceive of all situations.

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SG Mehta: Very heart of SMA is recognition of marriage between conventional man and conventional woman. Their request is to rewrite this to suit their circumstances. I am not opposed, but this can only be done by Parliament.

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SG Mehta: What petitioners are now seeking to achieve was consciously omitted in Special Marriage Act. This exercise would be restrained by four fundamental principles - cannot change character of law...

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SG Mehta: ...Cannot substitute legislative intent which is otherwise manifest, cannot read words of larger amplitude in place of words of smaller amplitude (i.e., persons instead of 'man'/'male'/'woman'/'female').

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SG Mehta: ...Would have effect on heterosexual couples because SMA largely for interfaith heterosexual couples...This court cannot use different lens for heterosexual couples, & another for non-heterosexual couples.

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SG Mehta takes court through what each letter in LGBTQIA+ abbreviation means.

"We don't look into what '+' means. There are 72 shades or variation. It needs to be assessed how this court proposes to deal with all these variations."

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SG Mehta takes court through different genders.

#CJIDYChandrachud: What is the source of this table?

SG: Footnote specifies.

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SG Mehta: Would it prudent or possible for this court to come up with regulations, even if it were to confer them with legal right to marry? There are 101 diff contingencies.

Continues outlining different gender identities.

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SG Mehta: No prohibition against marriage. You are asked to confer legal status on certain marriage...Marriage being a legal institution under religions. Not on morality, though that would be an imp consideration.

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SG Mehta: For millions of years, marriage has been recognised by religions as union between heterosexual persons. This has subsequently been codified in statute...procreation major purpose. (Reads from submission)

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SG Mehta: Marriage is a sociolegal institution, its recognition is necessarily a matter of legislative policy.

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SG Mehta: Ultimately societal acceptance is one of the considerations of recognition of any union. I will read a beautiful passage from American SC which says more harm to LGBTQIA+ would come if it is forced...

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SG Mehta: We cannot transplant to Indian context, principles that took birth in foreign soil without extensive consideration. No two Constitutions are alike.

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SG Mehta relies on dissent by Justice Holmes blaming majority for becoming a 'super legislature' in Lochner v New York.

"Very important dissent. This court should not attempt to substitute the legislature's wisdom with its own."

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SG Mehta relies on Gurbaksh Singh Sibbia judgement in which CJI YV Chandrachud (father of #CJIDYChandrachud) had written about limitations of the court.

"On a lighter note, Chief Justice Chandrachud may say this now."

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SG Mehta relies on Dobbs.

#CJIDYChandrachud: Principle of limitations well-settled. But if you are relying on Dobbs to support...we have gone far beyond that. Dobbs held that women have no bodily autonomy. Long debunked this.

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SG Mehta: Not supporting judgement on abortion rights, don't agree with it either. It's about returning power to people. Only saying that this must be decided by Parliament.

#CJIDYChandrachud: Point taken, but don't rely on Dobbs.

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SG Mehta: Social implications, return it to Parliament to decide.

#CJIDYChandrachud: Going by this, we will have to reconsider entire line of judgement from Maneka Gandhi.

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SG Mehta: Wherever legislature has stepped in, they have correspondingly amended other statutes. But, note that none of the various statutes that would be affected have been challenged here. So court cannot do what Parliament can.

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SG Mehta: Whenever legislature does it, makes corresponding changes.

Bhat J: Even legislatures which have legislated on marriage equality, they have done in graded manner. In 9 cases, such changes been preceded by court direction.

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Discussion on how marriage equality was granted in various countries.

SG Mehta: In Taiwan, act was followed by executive action & judgement.

Bhat J: In Austria, act followed judgement.

SG: There was a prohibition under challenge.

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SG Mehta: Like I said before, there is no prohibition here. What was struck down there was a prohibition on same sex marriage.

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Bench discusses Ghaidan v Godin-Mendoza (landmark UK gay rights judgement arising out of tenancy suit)

"Ghaidan also does not apply to Indian context. South Africa is only country where process initiated by judiciary."

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#CJIDYChandrachud: Look at Latvia, something very interesting happening there.

SG Tushar Mehta: Judgement followed by act.

CJI: Some countries have followed this doctrine where they have asked legislature to formulate a law.

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#CJIDYChandrachud: Of course we began by saying no mandamus. But, some countries have followed this model where they have given Parliament a timeline to come up with a law.

SG Mehta: That's right. Different constitutional ethos!

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SG Tushar Mehta takes court through debates on Special Marriage Act on the floor of the House.

#CJIDYChandrachud: SMA was intended to be religion-neutral, idea was to create a forum for people to marry outside their faith.

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SG Tushar Mehta: Two people of different castes or religions, but one had to be a man and another had to be a woman. SMA was intended to be a union of heterosexual couple.

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SG Tushar Mehta: Mr Mukul Rohatgi said that so many decades ago, such concepts were not known. First, even if it were so, that is not any reason to rewrite. Second, there was debate about this so this was a conscious decision.

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SG Tushar Mehta: Parliament was aware of lesbian and gay people. Select committee in fact used the word parties instead of 'man' & 'woman'. After heated debate, amendment was brought to introduce different ages for men & women.

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SG Tushar Mehta: People not agreeing to conditions were free to marry under religious law...That is personal uncodified law...does not prohibit LGBTQIA+ marriages, except...

(Discusses with junior) Yes, HMA prohibits...

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SG Tushar Mehta (continues reading out debates on SMA in Parliament): Brahmo Samaj of course was one of the main contributing factors, but not the sole one.

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SG Tushar Mehta: There was a member during the debate who asked 'homosexuality' to be introduced as a ground for debate, after 'sodomy'.

"A man must marry only a woman, not a man," Mehta quotes from the debates on SMA.

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Bhat J: At the time, were there ANY laws ANYWHERE in the world allowing same-sex marriage?

SG Tushar Mehta: Not to our knowledge...but no prohibition.

Bhat J: In England, there was prohibition till '73.

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SG Tushar Mehta: Your Lordship is right, till '56, it was neither permissive nor prohibitive. Maybe uncodified Shastric law would apply...May have its repercussions.

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SG Tushar Mehta talks about how certain members had argued for 'feminine vice of lesbianism' to be included & 'sodomy' be replaced by 'homosexuality' as ground for divorce under SMA, in the interest of the 'solidarity' of marriage.

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SG Tushar Mehta: So homosexuality was not something unknown to the members when Special Marriage Act was being debated. Despite this, they made a conscious decision to use 'man' & 'woman' instead of 'parties'.

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"Legislators were aware of homosexuality, but they consciously avoided, even as a ground for divorce under Special Marriage Act," SG Tushar Mehta contends that SMA was specifically intended to recognise only heterosexual unions.

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#CJIDYChandrachud: Will continue tomorrow.

SG Tushar Mehta to continue submissions tomorrow, Sr Adv Kapil Sibal & Attorney-General also to address the constitution bench. "Two sessions, maybe 1-2 hrs extra," says SG.

Bench rises.

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