Thread by @barandbench

[Same Sex Marriage Hearing] DAY 5

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

5-judge Constitution bench to begin hearing today post 11 am

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

Petitioners are expected to complete arguments by 12 pm and thereafter Solicitor General Tushar Mehta begins submissions for the Union of India
#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…

CJI: Now since we are dealing with constitution benches.. every morning we cannot have 600 MB files and hundreds of pages.. we must have a cut off when argument starts.. then if something exceptional happens.. then a note can be filed

#samesexmarriage #LGBTQI #gayrights

Adv Karuna Nundy: I seek a declaration that queer and LGBTQIA is allowed to marry under the secular legislation (Special marriage Act)

#samesexmarriage #LGBTQI #gayrights @karunanundy

Adv Karuna Nundy: the declaration includes rights to marry under secular legislations special marriage act, foreign marriage act and the OCI holders to grant entitlements based on registration.

#samesexmarriage #LGBTQI #gayrights @karunanundy

Adv Karuna Nundy: the 2011 census showed that there are atleast 4.8 million transgender people in the country which is an underestimation. Ms Muskan Tibrewala who assisted me is also one such persons and there are others too inside this courtroom #samesexmarriage #LGBTQI… twitter.com/i/web/status/1…

CJI: Person who is in a marital relationship can seek a gender re-assignment

Nundy: yes they can...

CJI: so the transgender act recognises the pre existing marriage of a person who is a trans since the person can be in a marital relationship when they identity themselves as a… twitter.com/i/web/status/1…

Justice Bhat: perhaps there is no ground for divorce in this case under the marriage laws.. but here the marriage which is recognised is between individuals who were not transgenders then.. then if we have to go backward from this... there has to be statutory support for this..… twitter.com/i/web/status/1…

CJI: These two forms which you showed us.. form 2 is a applied when there is gender reassignment surgery.. these forms indicate when they apply for gender certificate... they contemplate that a person could be in a valid marriage..

Justice Narasimha: it only contemplates the… twitter.com/i/web/status/1…

Justice Bhat: those who are married as heterosexual couples later turns out to be one where one recognises as a trans person.. at that stage law enables this much and does not upset the subsisting marriage.... you say having recognised pre existing relationship they are not… twitter.com/i/web/status/1…

Nundy: husband and wife should not be collapsed in one category and there should not be one neutral provision of spouse and the provisions in article 3 is there for a reason... #samegendermarriage

CJI: What she proposes is that the word third gender person is used.. male, female or third gender person.. then spouse instead of husband and wife... like i take this man, woman or third gender as my spouse.. #SameGenderMarriage

Nundy: if foreign marriage act does not follow special marriage act.. then marriages outside India cannot be registered in India since Section 4 of the FMA uses the term bride and bridegroom... if section 4 is read inclusively.. the rest of the act falls automatically into place. twitter.com/i/web/status/1…

Nundy: the third category is married OCI persons ..they cannot marry under Special marriage act and they cannot marry under foreign marriage act since one part is OCI and foreign citizen and another is foreign citizen..

CJI: can we decide constitutional validity on individual… twitter.com/i/web/status/1…

Adv Arundhati Katju: the question which fell from this court was on Section 21A of the special marriage act.. I will also address on what the consequences will follow if this court decides in favour of the petitioners.. this court cannot decide all questions today.. these are… twitter.com/i/web/status/1…

Katju: both positive declaration as a mandamus and a negative declaration as prohibition will go a long way in aiding the courts below.

Justice Bhat: suppose there is an accident and there is no will then the spouse stands excluded..

Katju: but all aspects which may arise before this court is not clear today as with many cases.. these nuances have been dealt over passage of time..

Justice Bhat: the organic… twitter.com/i/web/status/1…

Katju: apart from a challenge before the Delhi HC in 1980sthere has been no challenge to section 21A of the special marriage act.

Justice Narasimha: just formulate your points and summarise your submissions

Katju: as far as personal law application is concerned to the same sex couples.. section 21A must continue to apply to Hindu same sex couples.. in 50 years this section has not created any major difficulty for the LGBTQIA... this court should not presuppose the problem that may… twitter.com/i/web/status/1…

Katju: we see the blessings of the union of india.. Bless us the same sex couples as you would bless a heterosexual couple.. we need your blessings. #samegendermarriage

Katju: there are already LGBTQ couples who have children and by not recognising the marriage you are depriving the child of parenthood and child cannot suffer because of parents belonging to a separate class under Article 15 which is a protected one. #samegendermarriage

Adv Amritanand Chakroborty: if the parliament wanted to restrict adoption to heterosexual couples under JJ Act.. they would have used the term man and wife .. but the law uses the term couples. Justice Chandrachud had held that marriage is not a precondition to the rights of… twitter.com/i/web/status/1…

Chakroborty: I appear for the lead petitioner who is married in Denmark but in india they cannot... in India joint adoption is only for heterosexual couples and this is nothing but discriminatory #SameGenderMarriage

Chakroborty: It is not just right of LBTQ couple to claim for adoption.. we are talking of abandoned children.. just because of sexual orientation I will be deprived of a child and a child will b deprived of his family. Petitioners are part of historically discriminated lot and… twitter.com/i/web/status/1…

Adv Raghav Awasthi begins: there is no interference of Hindu customs and rituals..

CJI DY Chandrachud: We have excluded this from the canvas.. let us leave it at this. #supremecourtofindia

Adv Shivam Singh: I am on the aspect of innate characteristic... sexual orientation and gender is such an innate characteristic of a person that to discriminate on the basis of this will fall foul of article 14.. if state discriminates... then without establishing...it falls foul… twitter.com/i/web/status/1…

Adv Singh: Union says that only one form of protection is available to marriages of opposite sex and just because that has been the scene so far cannot be the sole reason for it to be so continuing further as well... on concurrent list aspect... previous IBC and arbitration… twitter.com/i/web/status/1…

Adv Manu Shrinath submits

An intervenor submits: a transwoman had a gender reassignment surgery and became a woman and married a man... she is from Bollywood.. now there are cases pending between her and her husband... Hindu marriage act does not prohibit these kind of marriages… twitter.com/i/web/status/1…

CJI: We will not go into this at all.

Adv: this person had a gender reassignment surgery

CJI: we cannot sit and look into intervenor facts and decide matter of wide constitutional issues

Justice Kohli: if we open such case facts then a pandoras box will open

Sr Adv Jaideep Gupta appears for an intervenor, Queer Collective.. : there are unscrupulous people out there who are saying there can be conversion therapies... if they are permitted to marry.. they must be protected against forced heterosexual marriages and not be subject to… twitter.com/i/web/status/1…

Gupta: to avoid invalidating the legislation there would be a need to interpreting it purposively..

Adv K Thulasi Raj submits concept of anti discrimination theory: dominate group has been able to discriminate against the cognate group and excluding the LGBTQIA segment will… twitter.com/i/web/status/1…

Adv Tanushree Bhalla: the word man should be read to include all three... cis gendered.. transgendered.. intersex persons.. the woman can include cis, trans, intersex or someone who identifies as the wife in the marriage... next the govt should be directed to include LGBQ to… twitter.com/i/web/status/1…

Bench rises

Petitioners CONCLUDE arguments in the same sex marriage case

Solicitor General Tushar Mehta to begin submissions after 2 pm

#SameGenderMarriage

[Solicitor General Of India Tushar Mehta begins submissions in the #SameGenderMarriagr case]

SG Mehta: not only as a law officer even as a citizen.. this court is dealing with a very complex subject having a profound social impact.

#SupremeCourtofIndia #LGBTQIA

SG Mehta: all the questions in this case must be left to the parliament. In Navtej the court recognised the right to ones sexual orientation. Here the real question is who will take a call on what constitutes marriage and between whom

#SupremeCourtofIndia

SG: there will be several unintended ramifications on several statutes. It would need debates in state legislatures, civil society groups.. at the outset the rest of exercise can be saved by agreeing that this should be preceded by some debates. I have given. 160 examples of laws… twitter.com/i/web/status/1…

SG: There are laws other than SMA and FMA (that will be affected). Legislative policy of this Court has been to recognise conventional man and conventional woman for marriage. All laws find this in the conventional sense. When this is being debated before your lordships for the… twitter.com/i/web/status/1…

SG: Why i say there is no stigma ... Legislative policy is very clear now on Transgenders Act where it is very widely defined to include all genders as we recognise under LGBTQIA.

#SupremeCourtofIndia #SupremeCourt

SG: Question is whether right to marry can be prayed for as a social institution by way of a judicial adjudication before this Honble Court.

#SupremeCourtofIndia

SG: Then is, right to compel the State to create a new definition of marriage ... parliament can do. But it is not an absolute right.

#SupremeCourt

SG: My appeal is that rather than taking it any further, this is a possibly a subject that should be left to Parliament which will be law. Lordships may not be in a position of the multiple situations that will arise. If they have a right how will it be regulated? Mere… twitter.com/i/web/status/1…

SG: I will give examples of the problems that will arise that only Parliament can take care of.

#SupremeCourtofIndia #SupremeCourt

SG gives history of Hindu Marriage Act.

SG: For other religions by and large it remains uncodified. The social status which marriage gets I am on ... The moment any right which was pre existing without recognition is recognised, it gets regulated. Law prescribes when to marry,… twitter.com/i/web/status/1…

SG: Bigamy is prohibited. Law prohibits how many times you can marry with a living wife. There are are degrees of prohibited relationships.

#SupremeCourtofIndia #SupremeCourt

SG: Protection of privacy is there in bedroom. But there are cases of intrusion also ... For eg impotence is a ground for divorce. That is something very personal, but to prove it privacy is breached. Once a legislative recognition is given to a union, it comes with it several… twitter.com/i/web/status/1…

SG: Only Parliament can conceive of such situations, it would be impossible for the Court to conceive of all.

#SupremeCourtofIndia

SG: Very heart of SMA is recognition of marriage between a conventional man and woman. Declaration is you rewrite it to shit our situation, I am not on the recognition but by whom is the question? Rewriting not permissible (by Court)...

#SupremeCourtofIndia #SupremeCourt

SG: What Petitioners are seeking is consciously omitted in special marriage Act.

#SupremeCourtofIndia #SupremeCourt

SG: Examining entire architecture of the Act, Courts cannot change the fundamental nature of a law. Courts cannot substitute legislative intent which is manifest.

#SupremeCourtofIndia #SupremeCourt

SG: Words of larger amplitude cannot be read into words of smaller amplitude. That is persons cannot replace the genders (in the law). SMA is for intra faith heterosexual couples.

#SupremeCourtofIndia #SupremeCourt

SG: there are several shades of the spectrum...it is not just gays, lesbians etc..

#SupremeCourtofIndia #SupremeCourt #SameGenderMarriage

SG: if LGBTQ persons are given recognition who are unidentified.. please see how will it be reconciled with the laws.. a person who does not identify with any gender is called agender, genderless... it is impossible to reconcile through a judgment.. a gender that is indomitable..… twitter.com/i/web/status/1…

CJI: What is the source of the list?

SG: I have checked from sources that this authentic..

CJI: Yes the source is medicine net... it is there is foot note...

SG: Then there is alexi gender... then transgender is different and now it is defined to mean everything.. transgender… twitter.com/i/web/status/1…

SG: There is ameca gender... where gender is changed as per the friends they have... ano gender where gender identity fades in an out with intensity and comes back with another gender identity... these are facts without value judgment... will it be prudent to lay down regulations… twitter.com/i/web/status/1…

SG: Then there is blur gender... would it be prudent or legally permissible to deal with this subject on the judicial side.. the court is not adjudicating a prohibition against a marriage.. there is no prohibition for LGBTQ to marry.. this court is on conferring a legal status of… twitter.com/i/web/status/1…

SG: All six major world religions overlap on marriage as identity, they consider marriage as a valuable institution where it lies at the heart of the institution and one principle that is followed is husband and wife complete each other and transforms into a new person.. children… twitter.com/i/web/status/1…

SG: The only constitutionally permissible solution would be to wait for the parliament to deal with it. #SameGenderMarriage

SG: Even the prayers of the petitioners are extremely vague. Societal acceptance is needed for recognition of an union and this has to be through the parliament. and if it is done by the court then it is detrimental to the LGBTQI since you are forcing something against the will… twitter.com/i/web/status/1…

SG: Justice Cardozo said "“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles."… twitter.com/i/web/status/1…

SG: Please see the dissent by Justice Oliver Holmes in Lockner case.

SG: Chief Justice YV Chandrachud in Gurbak Singh has stated how judiciary cannot encroach upon the legislature. on a lighter vein this CJI Chandrachud can say this in this case. The former CJI said nothing else can be read into a statute #SameGenderMarriage

CJI : These judgments on judicial power is well settled but if you are relying on Dobbs v. Jackson Women's Health Organization to support this principle.. then we have gone far ahead ,. in Dobbs US Supreme court ruled woman has no autonomy over her bodily integrity... these are… twitter.com/i/web/status/1…

SG: We did not rely on Dobbs for the subject matter.. we are ahead indeed... we are not relying on abortion rights case

CJI: For socially complex issues leave it to legislature, that point is well taken #SupremeCourtofIndia

CJI : If we go by this then we have to reconsider everything from Maneka Gandhi to Shayara Bano..that is not your submission as well

SG: whenever legislature has taken a step to legalise same sex marriage they have taken steps to amend other laws.. so the suggestion to keep the… twitter.com/i/web/status/1…

SG: In South Africa, the only country, the process was first initiated by the judiciary. Out of 34, 29 countries legislature stepped in... Bolivia is by judiciary...

CJI: Look at Latvia...

SG: yes judiciary first... but here same sex couples can register their marriage through… twitter.com/i/web/status/1…

SG: Intention of special marriage act was inter faith and inter caste but heterosexual unions...

CJI: SMA was religion neutral.. for couples to not marry under the fold of personal laws.. give us two or three page note on SMA antecedents.

SG: In SMA there has been a conscious omission of the same sex marriage case.

(Refers to the constituent assembly debates during the passage of the Special marriage act... )

SG reads portions on same sex marriage during constituent assembly debates which took place during the passage of Special Marriage Act

Justice Ravindra Bhat: at that time was there same sex marriage law anywhere in the world.. perhaps there was no foundation for such a marriage… twitter.com/i/web/status/1…

SG: The debate says one can marry the other , ofcourse of other sex. please read "ofcourse of other sex"

SG: The debates show that they are aware of other spectrum other than man and woman.. they were aware of homosexuality but they consciously avoided it even as a ground of divorce.

CJI: how long will you take?

SG: One day and a few hours. Sr Adv Sibal and AG is also there...… twitter.com/i/web/status/1…

Day 5 session of the #samesexmarriage case comes to a close

Hearing to resume tomorrow

#SupremeCourtofIndia