Thread by @barandbench

[Same Sex Marriage Hearing] DAY 6

#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

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: Let there not be repetition so that there is no mental fatigue dealing with repetitive arguments. No one else need to argue that it is a legislative exercise. Mr Mehta and Sr Adv Rakesh Dwivedi can guide others as to how arguments are not repeated

#samesexmarriage #LGBTQI… twitter.com/i/web/status/1…

Justice Kaul: we saw some of them who will argue.. but we made it clear we will not touch religious or adoption issues.. so i do not know if they will have anything to argue

CJI: Challenge to notice provisions in SMA can be assigned to a two judge bench if its a standalone… twitter.com/i/web/status/1…

SG Mehta: it will perhaps not be in the remit of the court to not go into personal law issues.

CJI: That you can very well argue...

SG: Yes milord

#Supremecourtofindia

SG: The petitioners want to re-write, re-structure and re-engineer the special marriage act to suit their requirements. Would an enactment be read in such a way that it applies in one way to heterosexuals and in another way to same sex.. this exercise may not be an interpretative… twitter.com/i/web/status/1…

CJI: These degrees of prohibited relationship are lifted from Hindu codified law?

SG: Sagotra and Sapinda ..

Justice Bhat having recovered from COVID19 is physically present in Supreme Court today

SG: What is the fundamental argument of the petitioner.. it is right to choose the sexual orientation

CJI: No they are saying sexual orientation is given to me.. it is not a matter of choice but an innate characteristic

SG: There are 2 schools of thought.. one says it can be… twitter.com/i/web/status/1…

SG: please visualise a situation 5 years down the line.. i am attracted to someone in the prohibited relationship... incest is not uncommon across the world and it is prohibited.. someone is attracted to the sister.. and claim autonomy and is doing something in private domain...… twitter.com/i/web/status/1…

SG: then one will claim right to polygamy...

Justice Bhat: if you are building up and saying there is state interest in this relationship... then that is different.. so there is no field completely autonomous in that sense.. there are certain state interests which are… twitter.com/i/web/status/1…

SG: now please see definition of full blood and half blood.. petitioners do not represent everyone in this class.. two persons are related by full blood when they are descendants from a common ancestor by the same wife and half blood when common ancestor but different wives..… twitter.com/i/web/status/1…

CJI: please see Section 3g of the Hindu Marriage Act

SG READS: 3(g) “degrees of prohibited relationship”—

two persons are said to be within the “degrees of prohibited relationship”—

(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a… twitter.com/i/web/status/1…

Justice Bhat: special marriage act was a template for which this was built.. #supremecourtofindia

SG: SECTION 4 - CONDITIONS RELATING TO SOLEMNIZATION OF SPECIAL MARRIAGES.―

(c) the male has completed the age of twenty-one years and the female the age of eighteen years;

(d) the parties are not within the degrees of prohibited relationship: Provided that where a custom… twitter.com/i/web/status/1…

CJI: In case of heterosexual couple a fact that one one of them cannot procreate does not invalidate the marriage like if the girl has a hysterectomy during childhood... so the procreation point may not be applicable #supremecourtofindia

SG: Section 21 of the Special Marriage Act: Succession to property of parties married under Act.. Muslims are governed by personal laws except for succession..

CJI: So 21A lifts the prohibition of the disability created by section 19... so when you marry a non hindu..

SG:… twitter.com/i/web/status/1…

Justice Bhat: there is some kind of cognateness in these legislations

SG: Yes milord.

SG: please see the 59th report of the law commission of India on section 21A.. It says both Hindu parties should be excluded where the succession law of hindu law can continue to apply..… twitter.com/i/web/status/1…

Justice Bhat: how many marriages are registered in this court room?

SG: My senior's marriage is not registered (Sr Adv Rakesh Dwivedi)

CJI: Where is the proof Mr Dwivedi.. where is the proof (laughs)

Dwivedi: will enable remarriage (laughs)

#Supremecourtofindia

CJI: The fact remains that non-registration of marriage does not render the marriage void.. only when you try for visas etc #supremecourt

CJI: you basically say that reading man and wife as spouse or persons will not help..

SG: now please come to the section concerning divorce.. see section 13

SG: We cannot just say decide the issue and leave individual cases for future adjudication.. issues will arise all across the country.. who will be the wife in a gay marriage.. and who will be the wife in a lesbian marriage where rights are granted to her.. like maintenance when… twitter.com/i/web/status/1…

CJI: For section 125 cpc also it refers to "his wife", "his mother father" so that is more.... it directly refers... #supremecourt

CJI DY Chandrachud: Referring to your arguments, it means that if we were to read provisions of the special marriage act as petitioners want us to and if court reinterprets the provisions there will be three major problems..

1. It will involve substantial re writing of… twitter.com/i/web/status/1…

SG: Now come to the domicile issue.. there is wife's domicile during her marriage.. and it has to be decided who is the wife. Succession act provides father, mother, brother, widow, widower... if in this relation one partner dies then who is left behind... widow or a widower?… twitter.com/i/web/status/1…

SG Mehta now refers to sections where "bride" and "bridegroom" has been mentioned

Justice Kaul: to test it as a devils advocate can it be said that in all these provisions that biological sex of the person is taken into account for all these legislations for the purpose to facilitate same sex marriage?

SG: it will not be workable because suppose in a same sex… twitter.com/i/web/status/1…

SG: If the custody goes to a mother.. then it has to be seen who is the mother.. the mother will be who we understand and the legislature has understood the same #supremecourt

Justice Bhat: section 376 IPC will not be applicable to same sex couples if you see

SG: see section 375.. here also a man can only commit rape..

Justice Bhat: but if gay man rapes another man.. then not 375.. then section 377 comes...

SG: yes section 377 decriminalized only… twitter.com/i/web/status/1…

SG Mehta reads: Indian Divorce Act, 1869

Section25. Separated wife deemed spinster for purposes of contract and suing

CJI : It is time you change this...

Justice Kohli: time you update the laws now..

CJI to his colleague judges.. deemed spinster.. imagine.

SG: Yes my lord… twitter.com/i/web/status/1…

SG: Petitioner's reliance on Ghaidan (UK judgment on queer rights) is misplaced. The bench was not provided with the factual background by the petitioners.... The system of judicial review in UK and the system of judicial review in India, are starkly different... In Ghaidan, the… twitter.com/i/web/status/1…

Justice Bhat: there are stronger words used.. like judicial vandalism

SG: yes the words in US court judgments are harsher

CJI: Yes they are not career judges.. they come from policy domain etc also..

SG: discussion of the boundary between legislation and interpretation has tended to focus on two factors. First, it will not be 'possible' to construe legislation in a Convention-compliant way if to do so would be inconsistent with some important feature of the legislation.… twitter.com/i/web/status/1…

SG: The earlier authorities, prior to Ghaidan supra and after HRA, 1998, which were summarised by Lord Bingham in Sheldrake v DPP;...it was held that a Convention-compliant interpretation may not be 'possible' where it:

" . . would be incompatible with the underlying thrust of… twitter.com/i/web/status/1…

Justice Bhat: there was a civil partnership act also.

SG: where there was debate and discussion by the legislature also.. then comes Wilkinson judgment

Justice Bhat: yes very interesting one

CJI: We will continue after 2 pm

#samesexmarriage

Senior Adv Raju Ramachandran: right to marry will be illusory if the notice provision under SMA continues

CJI: But this has no connect with the subject that same sex couples have a right to marry. This is an important social issue but not a constitutional issue

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

CJI: If you can wrap up by 3:30, the judges can go back and get back to tomorrows files. I will be here till night..

SG: I will milords

CJI: since we have wider judicial review powers our interpretative approach is narrower, this is because we can strike down a law. But in UK their approach is wider since they cannot do so..and only leave it to the parliament to remedy it

SG: Right to love, right to cohabit, right to choose a partner, right to have a sexual orientation is a fundamental right but there is no fundamental right to seek recognition of that relationship as a marriage or in any other name

CJI: we will make it right to project a sexual… twitter.com/i/web/status/1…

CJI: Suppose a same sex couples bring 25 people and have a marriage ceremony. so you accepted that there is no bar in law to have a ceremony but the question is about legal recognition

SG: Yes ! in Gujarat a woman married herself.. I do not know how

Justice Narasimha: yes it is… twitter.com/i/web/status/1…

CJI: once you recognise there is a right to cohabit.. and it may be symptomatic of a sustained relationship.. and once you say that right to cohabit a fundamental right// then it is the obligation of the state that all social impact of the cohabitation has a legal recognition..… twitter.com/i/web/status/1…

Justice Bhat: these are aspirations of a welfare society that there is a recognition of some sort.. so what can the state do.. apart from what you argue that

CJI: can the people who cohabit cannot open a joint bank account..

SG: We can find a solution to that problem

CJI: We… twitter.com/i/web/status/1…

Justice Bhat: you are saying they have right to associate themselves..

CJI: I do not think this will be an issue.. ultimately we want a broad sense of coalition... we are conscious what representative democracy can achieve at the moment.. see one of the couples in same sex… twitter.com/i/web/status/1…

SG: This movement started in 2002..

CJI: No SG.. This started much before and it had to be given up to make way for the Victorian philosophy... go to any temple and see the murals.. see 1857 and thereafter.. we imposed it as a code of british victorian morality on us where the… twitter.com/i/web/status/1…

CJI: despite the govt stated position before us... we have transgender act before us and look at the vision of the legislation

Justice Bhat: we had Vishakha and compared to earlier law.. now it applies to all establishments... then came the transgender act and this constant… twitter.com/i/web/status/1…

Justice Narasimha: when we say recognition it need not be recognition as marriage. it may mean recognition which entitles them to certain benefits... the association of two people need not be equated to marriage

CJI: In privy council era... long cohabitation equated to… twitter.com/i/web/status/1…

Justice SK Kaul: has any thought process been worked out in any concerned ministry or has such a thought process been worked out in the last 5 years

CJI: We request you to assist us in a non adversarial manner

SG: The decriminalisation of the act did not give any status to the… twitter.com/i/web/status/1…

SG: we can assist in the removal of these problems or difficulties but not granting any legal recognition or status

Justice Bhat: but the modality adopted is important since the term used can also be partner.. if not that then it may be counter productive.

Justice Narasimha:… twitter.com/i/web/status/1…

CJI: Our next hearing will be on May 3, so you can discuss with appropriate authority and get back till then. #samesexmarriage #supremecourtofindia

SG: Special marriage act is only for the heterosexuals. The object is inter-faith... there is no obligation on state to recognise each and every relationship.. #supremecourtofindia

SG: Transgender the way we understand in common parlance or in colloquial sense.. like eunuchs.. is not the one that is intended.. it covers all spectrum and shades.

CJI : The gay, lesbian community is not in transgenders...

Sr Adv Saurabh Kirpal: this is wrong ! a cis gendered person cannot be transgender person.. it is not at all so...

#Supremecourtofindia

CJI: Lesbians can be cis gendered... because they have not undergone sex reassignment surgery etc.. so no trans..

SG: yes like a man trapped in woman's body, i read somewhere. i may be wrong

#samesexmarriage

Justice Kaul: if the concerns of gay and lesbian community has to be addressed.. a legislation may be needed like the transgender act.. but the answer will not be in transgender act

SG: but the stigma is about transgenders.. others do not have stigma

CJI: a lot of stigma… twitter.com/i/web/status/1…

SG Mehta reads the special courts bill judgment by a seven judge bench

Then the point of under inclusion in Kedarnath Bajoria judgment: where it was said equal protection of laws does not mean all laws should be general in nature and that state cannot classify for the purpose… twitter.com/i/web/status/1…

SG: The validity of the special marriage act is being considered here.. so even if the act is held is unconstitutional the petitioners will not get any relief..

Justice Bhat: then you go only by the classification theory

#supremecourtofindia

SG: For personal liberty marriage is not a sine qua non... for enjoyment of right to cohabit you do not need a recognised institution of marriage..since this movement started 20 -30 years ago.. there is no concrete data on adoption etc and to make decision based on this now will… twitter.com/i/web/status/1…

CJI: Mr Dwivedi please give us a page... on what will you argue..

AG: I have a personal difficulty.. I wont be able to appear on Wednesday

Dwivedi: I will be on separation of powers.. on statutes like the special marriage act..

CJI: Please see 242nd law commission report... it was about freedom of matrimonial alliances/ learned AG was a part of the law commission then and a bill was also prepared. Of course there is no estoppel against you (laughs)

Bench rises

Hearing to continue on May 3, 2023… twitter.com/i/web/status/1…