Thread by @LiveLawIndia

[#MarriageEquality Petitions in the #SupremeCourt- Day 7]

A constitution bench of the #SupremeCourt will continue hearing the batch of petitions seeking legal recognition for queer marriage in India.

Follow this thread for live updates.

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SG Mehta: Apropos last hearings conclusion, where the issue was human concerns and the discussion that something could be done administratively- I have taken instructions.

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SG Mehta: The government is positive. What we have decided is that this would need coordination between more than one ministry. So therefore a committee headed by no less than the cabinet secretary will be constituted.

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SG Mehta: My friends can give me the suggestions or the problems which they're facing which the committee will go into and will try and see that so far as legally permissible, they are addressed.

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CJI DY Chandrachud: They have the weekend because after today we go to Tuesday. So in the meantime they can give the Attorney ideas and suggestions you have. This is without prejudice to your rights in rejoinder.

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SG Mehta: It won't be used as pleadings or anything.

CJI DY Chandrachud: They can have a little time to apply mind and then decide.

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CJI DY Chandrachud: Mr Solicitor, a valuable suggestion from my learned brother- what we could do is if the Attorney, you, Mr Dwivedi, Mr Datar etc, who are appearing on this side could have a meeting with counsels on other side maybe on Friday/Saturday.

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SG Mehta: Only difficulty would be, we the lawyers would not have ready solutions.

CJI DY Chandrachud: I understand.

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@DrAMSinghvi : Meeting is not the problem. Even suggestions aren't the problem. I heard my learned friends say "administrative". There are very substantive issues of law. This at the best is administrative tweaking. Legal tweaking is another thing.

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Singhvi: Personally I don't think your lordships will have any major solution. Having seen the gamit of problems, it is better that your lordships spend so much time to get to a solution. This can be in addition though.

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SG Mehta: Whichever mode, method, and manner in which the problem can be addressed, we'll do.

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Singhvi: Whatever is given by administrative tweaking is certainly welcome. But it may not be a substitute.

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SG Mehta: Suppose there is a change of law needed, then we will have to examine if that can be done.

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CJI DY Chandrachud: From the drift of the submissions made by SG last time, it appears that the SG also accepts that people do have a right to cohabit and that right is an accepted social reality.

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CJI DY Chandrachud: Based on that, there may be certain incidents of that cohabitation- bank accounts, insurance policies - these are practical issues which can be resolved by the government.

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SG: If two old men are living together...

Sr Adv Menaka Guruswamy: Rights is a proactive positive enactment that the law recognises. There is a distinction here. So, an old man being taken care of by a caregiver misses the point.

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Guruswamy: For something as simple as pension, provident fund, gratuity, benefits - that accrues only in a marriage. It doesn't accrue to a caregiver.

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CJI DY Chandrachud: That exists in a marriage because that's the nature of our rules. If that exactly is something the government has to consider..

SG: Suppose the government says that nomination in PF is family member or anyone else, then you don't need to go into anything else

Justice Kaul: Dr Singhvi, please notice this is without prejudice to everyone's contentions. Even if the court was inclined to give a status of marriage, there will be many changes required in administrative and legislative aspects.

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Justice Kaul: They are reluctant to give status of marriage but they're not reluctant to sort out the problems arising from gay companionship without elevating it to marriage.

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Justice Kaul: Therefore, what is the suggestion from the bench is that the nittigritties of what may be done, some endeavour or step is taken in that direction. So let us accept without pre-notions.

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Singhvi: We are happy to divide it and if everyone eats the low hanging fruit, we'll all co-operate.

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CJI DY Chandrachud: When we go to the conceptual domain, we can't be oblivious to the fact that to the extent to which the conceptual domain requires legislative changes, that part clearly lies outside. To what extent can the court formulate conceptual doctrines?

CJI DY Chandrachud: Your fundamental point is that there is a right to marry, that it can be sourced in SMA. Therefore, ofcourse we'll have to decide it but to the extent which the government takes the first step forward, there will be a substantive benefit.

Justice Bhat: Dr Guruswamy and Mr Kirpal, all of you, in different ways said that this could be a part of series. Look at it from reverse- if this results in a gain, maybe not as substantial as you visualised, it could be a building block.

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Justice Bhat: So is it advisable, prudent, if you're going to get this to continue with that larger push?

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Sr Adv Saurabh Kirpal: When one goes out and meets 99% of the people come up to you, they all say only one thing- to get married. The consensus within the community, that they wish to have marriage.

Guruswamy: Yes.

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Kirpal: In all the multiple meetings we have, de hors some academic discussions of people who say no it's a heteronormative institution, it's not necessary...the vast majority of the young people all said we want to get married.

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Kirpal: Why should we be second class citizens?

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Kirpal: Atleast Section 4 recognition of marriage has to be given. What rights follow from that, when, how- those modalities...

SG Mehta: That is legislative.

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Guruswamy: Young people in our country want marriage. I don't say this as an elite lawyer. I say this as someone having met these young people. Do not let them experience what we have experienced. Every study indicates...

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CJI DY Chandrachud: There is a problem with this line of argument. I understand the feelings out of which this argument comes but on the constitutional level there's a problem.

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CJI DY Chandrachud: If we go by what young people feel, as a constitutional court, then we will be subject to volumes of what other people feel. The court has to go by constitutional mandate. We don't go by a popular morality.

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CJI DY Chandrachud: Suppose we were to come to the conclusion that this argument is not as simple as it appears- that there are too many interlinks with other statutes, then what?

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CJI DY Chandrachud: This is a social institution which is evolving over time. But the court can ensured by acting as a facilitator that real progress is achieved today in terms of your wider societal acceptance to cohabit together.

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CJI DY Chandrachud: We don't want the movement to be in a situation where there is nothing else in hand and the matter goes.

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Justice Bhat: You're all aware of the history, better than us. You are circumventing all that. Ofcourse there is a lot of feelings in this, but if you do gain something out of this, that's a big big positive.

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Justice Bhat: If you're likely to get it, just sit back and think what you're gaining. And then if you still want that declaration, we'll have to examine.

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Justice Bhat: Don't see this as the end of the battle. Your movement for equal recognition will always remain. Even if you don't accept this or partly accept this, it won't be the end of what you do.

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Guruswamy: In US, after the SC gave its broad and firm declaration, the counsels then sat with the government and went through each law. Each department sat with them and saw 710 laws and sorted it out line by line.

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Justice Bhat: That was different. We're literally putting alphabet together. It's that much harder.

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SG Mehta: While giving suggestions, I would ask them to not give jurisprudential ideas, only problems that can be addressed on administrative side. It shouldn't happen that the committee doesn't understand what is going on.

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CJI DY Chandrachud: Ofcourse, there is no delegation of judicial powers.

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SG Mehta: I have filed a note. There are only three points I wish to make. Recognition of marriage is not a fundamental right.

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SG Mehta: It is their intimate relationship, the state has no right to regulate or recognise. Why the recognition came? Because the court felt that we will have to regulate- you cannot marry at any age, many times, say bye bye whenever you want, children may be there.

SG Mehta: The state should step in only when the state feels that it is in legitimate interest to regulate a relationship and recognition is only a consequence of that.

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SG Mehta: Your lordships never remotely considered marriage as an abstract proposition to be declared a fundamental right.

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CJI DY Chandrachud: Their argument is not that state is duty bound to recognise all relationships. Their contention is that by not recognising same sex marriage, the state is acting in a discriminatory way.

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CJI DY Chandrachud: The argument is of the anti discrimination principle. They say that marriage is a vital institution, same sex couples are entitled same right to dignity, and not recognising that relationship would deprive them of societal benefits attached to marriage.

SG Mehta: This is a reasonable classification.

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SG Mehta provides the bench with some judgements.

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SG Mehta: I received a phone from Mr Sibal this morning. Today he is a little under the weather so his presence may be dispensed with.

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Attorney General R Venkatramani begins his submissions.

AG: I wish to convey my deep appreciation for petitioners for deep insights I received on a subject like this.

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AG: At one level the court is engaged in a noble task. On a different level, it is a matter where court engagement, or engagement of counsel, howsoever enlightened we are or deeply committed to it, the subject calls for a practical outcomes, an incremental approach.

AG: Certain principles of interpretations, which seem to be on evolving...even looking at the commonwealth perspectives, we see wide range in New Zealand approach and English approach.

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AG: It's not that we have a universal perspective on aspects of matter on which there is no disagreement.

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AG: The court should not alter fundamentally the basic text of a statute. We saw how vaccum was filled in Vishakha, we can see how solution is reached. So suggestions by government can be looked at.

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AG: It doesn't mean that court will not deliberate on this subject but it's important to know where the lines will be drawn.

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AG: The other day your lordships were referring to the 242 law commission report- I was a member of that commission. Even in that report, we had probably thought about this issue and there is a statement on why the definition of marriage may not be enlarged.

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AG: The trigger point in that report was about the Khaap Panchayat and impediment in freedom of marriage.

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AG refers to the Law Commission's report.

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AG: In SMA, the law is not ex facie or unconstitutional. Therefore, the question of reading down doesn't arise.

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CJI DY Chandrachud: So you've dealt with also the argument of inclusion that the fact that the SMA was intended to be a special law in the context of conventional institution of marriage...but same sex couples weren't intended to be a part of this law.

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CJI DY Chandrachud: And you're saying that this would not just involve tweaking of this law but the whole host of legislations. You've formulated it very succinctly.

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AG: It's not a Vishakha simplistic statement. The course adopted in Vishakha cannot be replicated here both for doctrinal and practical reasons.

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AG: No vaccum can be attributed to the SMA. Absence of reference to all possible unions of persons as marriage cannot be construed as a legal and a constitutional omission.

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CJI: You have emphasised that there was a lot of consultative process, deliberation.

Justice Bhat: In a way, this was put to us- this act was preceded by Civil Partnership Act of 2004 so social process of assimilation worked out through parliamentary process.

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AG: I have also placed on record this article where the author not only looks at the fundamental misconceptions and reluctance to accept emerging institutions of marriage, particularly it also looks at Ghadian, marriage, home, spouse etc.

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AG: It also looks at the other aspects of what happens within such unions and associations.

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AG: This is a judgement of the Supreme Court of New Zealand. This is post Ghaidan. Please see a few paragraphs.

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The bench has risen for lunch.

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Sr Adv Rakesh Dwivedi: There is an omnibus demand- same sex, intersex, transgenders- all want an equation with heterosexual marriage and are asking you to amend the SMA.

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Dwivedi: Second, this is a demand for equation, not simpliciter right to marriage, but marriage at par with heterosexuals. Is there a fundamental right to marry? To recognition of marriage? Is there fundamental right to equation/ equality in matter of marriage with heterosexual

Dwivedi: Mr Rohatgi said read husband and wife as spouse, man and woman as person and operate both schedules at the end of the act prescribing prohibited degrees.

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Dwivedi: Then there was a suggestion that 99% transgenders can be accommodated with women.

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Dwivedi: Now Mr SG has taken your lordships to the SMA and various cases on why this cannot be done and why it is too drastic.

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Dwivedi: I want your lordships to look at Section 4. Spouse is a flexible word grammatically. But in the context of the act spouse means husband or wife. The context of this act is heterosexual, everyone agrees to that.

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Dwivedi: Is it a simple substitution? You set up your claim based on choice, autonomy, dignity etc. Is there not dignity for heterosexual?

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CJI DY Chandrachud: How is the dignity of heterosexuals affected?

Dwivedi: Because husband and wife relationship is a meaningful relationship since antiquity.

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CJI DY Chandrachud: Do you mean to say, and we're just testing the argument here, that the dignity of the relationship between a heterosexual husband and wife would be affected by granting recognition to a same sex couple?

Dwivedi: Not that.

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Dwivedi: When we say that I take you as a husband or wife, you want us to say that i take you as a spouse.

CJI DY Chandrachud: This is not your strongest point.

Dwivedi: It is!

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Justice Bhat: What you're driving at is this- that you're not looking at this form, you're looking at the traditional form...but argument is how are you diminishing the dignity?

Dwivedi: Because you have to tell marriage officer that i take you as a spouse

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CJI DY Chandrachud: When you say that I take you as a spouse, that is also consistent with I take you as a spouse who is my wife.

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Dwivedi: In Section 4, the sense is that they're husband and wife. If you substitute, it'll include all other relationships.

CJI DY Chandrachud: That's a different point.

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Dwivedi: While claiming dignity, you should not inflict indignity, whether traditionally, culturally, historically, socially...these are valuable things. They may not have meaning to people who don't attach value to it.

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CJI DY Chandrachud: So you're saying that marriage is understood as a union between a heterosexual couple. And by recognising anything apart from that you're affecting traditional values.

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Dwivedi: Don't dilute the status with tinkering.

CJI DY Chandrachud: Alright we got your point.

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Dwivedi: Preparedness of society to accept the change is also equally important. Let's not rush.

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CJI DY Chandrachud: We're a Constitution with an enforceable chapter on fundamental rights.

Dwivedi: But fundamental rights don't operate in vaccum. They operate in context of given society. That's why I'm averse when some try to cross seas.

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CJI DY Chandrachud: Let's be very clear. The existence of same sex couple is not something which will be imported from some other place. It's as much a part of our society as anything else.

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Dwivedi: They were there. They were given dignity but marriage is not a matter of dignity. If that were so unmarried people wouldn't have any dignity. It's not like that.

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CJI DY Chandrachud: The argument is not that people who are single lack dignity or marriage is the only source of dignity. The point is about choice.

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Dwivedi: Who's stopping them? Marry! There is no law. I would be very happy if all these laws are taken away. But these laws are there to protect the interests of women and children because of the command of Article 15(3) which says state can make a special provision.

Dwivedi: Dignity has nothing to do with marriage. My marriage is not registered. So do I not have dignity? I'm not looking for any recognition from any law. We never depend on state.

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Dwivedi: This is all about social acceptance. It is only social evolution. In which representative of people participate - that will only bring social acceptance.

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Dwivedi: Women got right to maintenance in 1937. It was blown up into a bigger right in 1956. They became coparcener in 2000-2005. Even today they don't have rights under agricultural reforms act.

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Dwivedi: It's a cause for which you're battling. All causes take time to succeed. And all causes have their martyrs. It's not an individual cause- that I left the world without getting married. This is a cause which requires social accomodation.

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Dwivedi: The parliament, which has the pulse of the people in hand, are in the best position to decide when to take the next step, what should be the next step, and how should it be brought about.

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Dwivedi: Don't force it. Because the whole social fabric can be ripped apart. We don't know what consequences will happen. Slowness is the way forward in such matter, not speed.

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CJI DY Chandrachud: Suppose there is a same sex couple and in that relationship, one of the persons marries a person of the opposite sex. Then strictly speaking, this provision of bigamy wouldn't apply.

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CJI DY Chandrachud: So if there are two men in a relationship and one of them marries a woman, there will be no offence of bigamy.

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CJI DY Chandrachud: So in other words, your submission is that in order to take care of a myriad situation, it's for the law making body to enter upon this situation.

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Dwivedi: The parliament has committees, law commission - all these tools are available to parliament. This adjudication is happening in the absence of States. Entry 5 is in concurrent list.

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CJI DY Chandrachud: We're hearing you Mr Dwivedi.

Dwivedi: As an intervenor.

CJI DY Chandrachud: How many Dwivedis do we have to hear all the states being represented. One is good enough?

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Dwivedi refers to judgements.

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Dwivedi: This prayer to discard originalism- we're not advancing some fundamental right here. Question is statutory rights- SMA as it exists, can we discard its intention?

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Dwivedi: You strike down. Heterosexuals will have no problem if it is struck down. Our marriages don't vest on any of these laws. They rely on customs and personal laws.

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Justice Bhat: Those who belong to the same faith, for them it is no problem. But those who belong to different faiths- for them it is a loss.

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Dwivedi: These are regulatory. But it is not limited to those who are inter faith. But they have a choice. And they don't depend on this. Form of marriage is also not prescribed under SMA.

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Dwivedi: Let it evolve. Heterosexuals have reached here after ages. Since Navtej, it has only been four and a half years. Let there be more debate, more acceptance. Let the parliament feel more confident that something can be done.

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The bench has risen for the day. The hearings will resume on Tuesday, 9th May 2023.

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