Thread by @LawBeatInd

Day 5 - #SupremeCourtofIndia is hearing plea(s) seeking to recognise same sex marriage legally

A Constitution bench is hearing the petitions, led by #CJIDYChandrachud

Bench assembles. Both Judges SK Kaul & S Ravindra Bhat have joined from their own chambers. Last week, there were reports of Justice Bhat contracting Covid #SupremeCourt

Karuna Nundy says shes seeks a declaration to marry under secular law as well as foreign marriage act for her clients & OCI Cards for them. #SupremeCourtofIndia
#Samesexmarriage

Nundy: 99.9 per cent fall in gender binary — this has been argued. We differ on this point. There are at least 2.7 million trans people according to census in 2007. There are persons in this room in fact who are trans. But they have been demonised by society. One such person is… twitter.com/i/web/status/1…

Nundy: I am saying that there is no bar on anyone for divorce or marrying on anyone who seeks Self identification of gender after marriage (changes gender after marriage).

Justice Bhat: This self assertion of identity has consequences. For example in subsisting marriages, there may be children involved, rights etc. The Transgender Act recognises assertion of identity.

Nundy: The state already recognises from delegated legislations, some trans marriages. That is restricted to marriages which subsisted prior to ones gender transition.
#SupremeCourt #SameGenderMarriage

Nundy: It has been said that trans and queer people are elite etc.

#CJI: Please stick to legal arguments. This was coming from a place of bias which has no bearing on actual deciding of cases
#SameGenderMarriage #SupremeCourt

Nundy: After gender reassignment surgeries is done, situation is different.

Justice Hima Kohli: The rules (Transgender persons) does refer to changes in gender.

Nundy: Law recognises changes in gender.

Nundy says that currently there are some transgender marriage that at the point of transition are recognised to subsist but some are not.

Nundy: Some people are not able to marry people they love because of the difference in rules.
#SupremeCourt #SameGenderMarriage

Nundy: Husband and Wife should not be collapsed into neutral category of spouse because heightened protections for women are there for a reason. So we proposed “third gender spouse” and “non-binary” can be used with husband or with wife. #SupremeCourtOfIndia #SameGenderMarriage

Nundy: The Madras HC has introduced this workability to the extent of including persons who are trans. But we are proposing that non-binary persons be introduced for purposes of recognising marriage. There is a ground because of historical discrimination to do this… twitter.com/i/web/status/1…

Nundy says both Foreign Marriage act and special marriage act cannot be ready on their own for the purpose of the present plea. #SupremeCourt #SameGenderMarriage

Nundy cites cases from Israel’s court.
#SameGenderMarriage #SupremeCourt

Arundhati Katju: A marriage of a Hindu Buddhist Sikh or Jain who gets married in another community gets severed from Joint Family property. Same sex couples are not different and we should not be treated differently. They will come to court to assert their rights whenever they… twitter.com/i/web/status/1…

Justice Bhat: Your argument subsists on the argument with an assumption that both persons are Hindus. What about when the couple is Muslim & Christian? Or Jew?

Katju: Of course, what may devolve will devolve when its time. We cannot foresee right now. But we are only saying that… twitter.com/i/web/status/1…

Katju is taking the court through various changes that devolved on the laws of marriage in history. She tells court that Brahmo Samaji’s did not want to associate with Hinduism & how their marriage rights devolved. #SupremeCourt #SameGenderMarriage

Katju: The LGBTQ community is excluded altogether. On the one hand, Union says Lgbtq couple will create havoc in personal laws! Our parents also long for us to marry. Yes, many families oppose marriages of same sex couples just like opposite sex couples. But Union protects those… twitter.com/i/web/status/1…

Katju: I have received calls from Hissar, Raipur, villages, districts.. you name it. Why are there assumptions? We are at the threshold. The Union should bless us just as it would bless the opposite sex couples #SameGenderMarriage #SupremeCourt

Other lawyers make submissions. #SameGenderMarriage #SupremeCourt

Shivam Singh: Its time we recognise same sex marriages in light of the philosophy we follow of “Sarva Dharm Sam Bhav”. #SupremeCourt #SameGenderMarriage

The hearing has resumed after lunch. The Union of India is placing arguments on record. Solicitor General Tushar Mehta is currently arguing. He is making submissions from perspective of Legislative domain for marriage laws. #SameGenderMarriage #SupremeCourt

SG: The + in the Lgbtqia Community has 72 variations of gender. This is a set of unrecognised people. How will we regulate this under law? #SameGenderMarriage #SupremeCourt

SG: Under this + of lgbtqia+ community, some people refuse to identify under any gender. How will the law recognize them? As a man or a woman? For some, gender will depend on mood swings! #SameGenderMarriage #SupremeCourt

SG: In every religion, there is a notion to marriage between husband and wife. This is in Hindu scriptures, Islam, Judaism, Christianity. #SameGenderMarriage #SupremeCourt

SG: Even under Special Marriage Act, the recognition of marriage gives primacy to procreation from marriage. #SupremeCourt #SameGenderMarriage

SG: If there is an unrecognised group of people from perspective of gender identity, is it possible to come up with regulations for each situation by court? In this case, there may be 101 diff contingencies! #SupremeCourt #SameGenderMarriage

SG: Ultimately societal acceptance is the way for recognition of any union. The SCOTUS has said that any recognition by the court does more harm than good. #SameGenderMarriage #SupremeCourtOfIndia

SG: We cannot forget the anthropological background that recognised marriage as an institution #SameGenderMarriage #SupremeCourtofIndia

SG: The class with which your lordship is dealing with is vague. It has its own problems. It will create its own issues. #SameGenderMarriage #SupremeCourt

SG: Recognition of same sex marriage will open 160 other laws for change. Is this a matter for court to decide or a matter of legislative policy? #SameGenderMarriage #SupremeCourt

SG cites Dobbs v. Jackson Women's Health Organization which overturned right to abortion in USA. He says the principle of morality specified needs to be seen.

#CJI: We have gone far beyond Dobbs. It says women have no bodily autonomy.

SG: I am not supporting that judgment. I… twitter.com/i/web/status/1…

#CJI: We have gone beyond the right against bodily autonomy for women.

SG emphasises that he does not support the abortion judgment in USA on facts but only for the jurisprudence of parliamentary primacy for framing laws. “I am not a fan of citing foreign judgments”

#CJI:… twitter.com/i/web/status/1…

SG: We are far ahead of the USA in many ways. In no way do I mean that I support overturning abortion rights.

#CJI: Fair enough
#SupremeCourt #SameGenderMarriage

SG: Recognition of #SameSexMarriage in all 29 countries have come from parliament and statutes have been amended by legislature.
#SupremeCourtofIndia

Bench and bar discuss international precedents where same sex marriage recognition of was introduced after judicial proceedings by executive and vice versa.
#CJI: Look what happened in Latvia. They introduced a law after court directed #SupremeCourt

SG: There is a submission of Mr Rohatgi that in 1950’s when Hindu Code bills were introduced, there was no concept of gays and that is why it was never introduced. I respectfully disagree. There is a discussion on this & same sex marriage was specifically left out. #SupremeCourt… twitter.com/i/web/status/1…

SG reads parliamentary debates concerning Special Marriage Act and Hindu Codes.
#samesexmarriage #SupremeCourt

SG: Parliament was aware of lesbian and gay people even at the time of introduction of hindu code bills and special marriage act. There was usage of word “party” instead of man and woman.
There was separate ages mentioned for marriage for both sexes #samesexmarriage #SupremeCourt

SG reads parliamentary debates wrt Special Marriage Act. He reads submissions of hon’ble members of parliament. One of the members stated that a man can only marry a woman. (SG is doing this so as to navigate through the intent of the legislation) #samesexmarriage #SupremeCourt

Justice Bhat: At that time (the 1950’s) solicitor, was there any law which allowed same sex marriage?

SG: But there was no prohibition.

Justice Bhat: But there was a prohibition in England.

SG: The Shastric law governed hindu marriages before codes came. So accordingly, there… twitter.com/i/web/status/1…

There are parliamentary debates which equate Sodomy with Homosexuality (the discussion is wrt grounds for divorce in legislations for governing marriage). “I am mentioning this because they were aware of other spectrums at the time so it’s incorrect to say they were not,” says SG… twitter.com/i/web/status/1…

Hearing ends for the day.