Thread by @LiveLawIndia

[Marriage Equality Petitions in #SupremeCourt- Day 8]

A constitution bench of #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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Sr Adv Rakesh Dwivedi: Just two cases I wanted your lordships to note. I have submitted a compilation. That is about how 'spouse' is understood in Section 5(1).

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Dwivedi: Now come to my written notes. There were three cases Mr Vishwanathan cited. These cases were on administrative orders, they have nothing to legislative matters of reading down etc.

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Dwivedi: Now please see Article 50. It doesn't talk about parliament. Parliament has in the judicial domain power to make laws.

CJI DY Chandrachud Article 50 was enacted in a different context.

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CJI DY Chandrachud: Even after the Constitution, there was no strict separation between the executive and judicial functions especially in district judiciary. The idea was for district magistrates to not exercise powers of civil court.

CJI DY Chandrachud: Even today until recently in the North East for instance...

Dwivedi: Separation of powers has to be deciphered by referring to all provisions and scheme of the act.

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CJI DY Chandrachud: This is very well settled, you can move on.

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Dwivedi: In fields of reforms also your lordships said that it was for the legislature. For dowry, your lordships said legislature.

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Dwivedi: The first question is- is there a fundamental right for persons in same sex relations to marry? Either flowing from Article 14, 15 or 21.

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CJI DY Chandrachud: Does anyone have a fundamental right to marry? Forget the issue of same sex. Does anyone have that right? Or as per your submissions, is there no fundamental right to marry?

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Justice Ravindra Bhat: We have placed the individual at that highest pinnacle and we have gone ahead and carved out so many rights- right of person, choice, privacy, autonomy, dignity- which is part of preamble.

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Justice Bhat: With all this, does a person have a right to marry? Granted it is not unqualified. Right to freedom, privacy, even life is not an unqualified life. What is the right to marry? Is there a right?

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Dwivedi: Heterosexual people have the right to marry as per their personal law, custom, religion. That has been continuous - that is the foundation of their right.

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CJI DY Chandrachud: So you concede the fact that there is a right to marry under the constitution but that is confined to heterosexuals?

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Justice Bhat: Taking the argument forward- custom, culture, religion - rewind that 50 years ago- inter caste marriages were not permitted. Go back further- sapinda marriage was not permitted. The context of marriage has changed.

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Dwivedi: These changes have been brought by the legislature.

Justice Kohli: Keeping that legislation aside, would you say that right to marry is based and founded in the Constitution?

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Dwivedi: Constitution only gives a fundamental right to form relations, association, under 19(1)(c). What we call marriage association resulted in a social institution.

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Dwivedi: This institution of marriage has evolved as a result of society's evolution over time.

Justice Kohli: Even prior to the constitution, there were customs, ceremonies, and all of it. Once the constitution came in...

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Dwivedi: That right to marriage which was existing as a part of social institution will be included in the right to associate in a particular manner.

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Dwivedi: Asking to open the door of the social institution of marriage is the plea. they say SMA has now become unconstitutional.

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Justice Bhat: Nothing is granted. We're free citizens. We have taken this to ourselves. Right to speak, to associate - these are part of our inherent rights. Constitution doesn't grant. Even legislations have only recognised.

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Justice Bhat: So even the right to marry is inherent. If we say that it is inherent, it is a part of the constitution. You may locate it in 19 or 21.

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Justice Bhat: The moment you bring tradition, the constitution itself is a tradition breaker. Because the first time you brought in 14, you brought in 15, and 17, those traditions are broken.

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Justice Bhat: If those traditions are broken, what is held hallowed in our society in terms of caste? We made a conscious break and said we don't want it.

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Justice Bhat: We went so far to hold untouchability as unconstitutional. I don't think any other constitution says that.

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Justice Bhat: Traditions are there to the extent they are there. But at the same time let us be alive to the fact that the concept of marriage has evolved.

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Dwivedi: The point is that all these reforms are made by legislature for interest of women and children and they do not alter the core aspect of the social institution of marriage, namely that it's an institution - a sanskar.

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Dwivedi: The core aspect of marriage remains. You may have alimony, maintenance, divorce, inter caste but ultimately the marriages remain heterosexual marriages.

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CJI DY Chandrachud: To state at the extreme that there was no fundamental right to marry under constitution would be far fetched. What are the core elements of marriage? If you look at each element, each is protected by constitutional values.

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CJI: One, marriage itself postulates two individuals to cohabit. Two, marriage accompanies with it the existence of family. Three, marriage has procreation as a very important ingredient. Though, we must be cognizant that the validity of marriage is not conditional on it.

CJI DY Chandrachud: Four, marriage is exclusionary to all others. People in a marriage to exclude all others from the marriage. Five, social acceptance of existence of marriage. Social acceptance is not confined to that individual but how society looks at that institution.

CJI DY Chandrachud: Having said that, it cannot be denied that state has a legitimate interest in regulating marriage.

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CJI DY Chandrachud: We must accept as a basic proposition that marriage itself is entitled to constitutional protection. It is not just a matter of statutory recognition.

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CJI DY Chandrachud: The next issue is that is heterosexuality a core element of marriage? Your submission is that as marriage has evolved and even today, whether it has social acceptance or not is state's interest.

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Justice Bhat: What is the content? What is marriage to each other? The content is decided voluntarily by each party. The spouses decide whether to have children- it's entirely their choice.

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Justice Bhat: There may be marriages where parties may not live together. There may be no matrimonial home. Marriages may not have any element of physical or sexual relations. So what is the content central to marriage is upon the spouses.

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Dwivedi: No my lords. One view is that marriage is up to the parties to define. Marriage becomes a fluid concept. What are the consequences of this? I'll show you this through an article. Then we'll have to knock down prohibited degrees.

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Dwivedi: Then the writer of article even says that the brother and sister can marry.

CJI DY Chandrachud: That doesn't pose a constitutional problem to us because there you recognise the interest of state.

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Justice Bhat: In all societies, barring a few, prohibited degrees of relationships exist in some manner or other.

Dwivedi: If we see history, we see that in Muslims it's different.

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Justice Bhat: Apart from blood relationships, there is marriage relationships- like sisters in law etc. Why is that relationship prohibited? Perhaps a deep rooted public interest - orderliness. That is state interest.

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Dwivedi: If you treat marriage as an individual concept where spouses define what marriage is- there will be no law.

Justice Bhat: There is a law but noone is compelled to have children or live together.

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Justice Bhat: You see construction workers, migrants- they're away from homes throughout year. They go back for 15-20 days. What is the family life? What is cohabitation for them?

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Dwivedi: Family life will depend from case to case but marriage will not. Marriage is to bring about a unity of man and woman for a social purpose. Because society needs to perpetuate itself.

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Dwivedi: The generality is that our population has grown from 44 crores to 1.4 billion is not because of some people who didn't procreate. We reached here because in general people want to come together, cohabitate, engage in sex not for pleasure but for building a family of own

Dwivedi: We all want our own child. That's how we build it. Our concept is different. Take any religion.

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Dwivedi: Core content is a man and a woman coming together. As even Bible says - go be fruitful and multiply. Every religion says.

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Justice Bhat: So you're saying procreation is the definition of marriage?

Dwivedi: Society cannot survive. See the problem china and Japan are facing. We cannot IVF and adoption. Some heterosexual has produced.

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Dwivedi: Even IVF is surrogacy- coming together of an egg and a sperm. Ultimately your family is dependent on a heterosexual union. That's the fundamental truth, cosmic unity.

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Dwivedi: Producing children, rearing children - we don't want to be America. There are families impressed by that but everything is not beautiful there.

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Dwivedi: I have a strong criticism of Justice Kennedy, Prof Nussbaum. They treat marriage as a pure and simple contract. It's not that. It's the most sacred phenomenon. And not confined to humans but to other species.

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Justice Kohli: So when you talk of right to marriage- Marriage in any case transcends the constitution. It is not looking for sanctity within constitution having pre-dated it by several centuries.

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Dwivedi: Why do all religions, even though they are in conflict with each other, they all regard homosexual relations as a sin!

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CJI DY Chandrachud: The moment you say that it is not just a matter of mere contract but there is an element of sacrament- it is again a fundamental precept of our law.

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CJI DY Chandrachud: First thing we learn in Hindu law is marriage is not merely a matter of contract but sacrament. Once you accept that, it's a sacrament which is also impressed with a constitutional character.

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Dwivedi: It doesn't depend on that. Your lordships may find its continuance there.

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Justice Bhat: That can be said for anything else. It's not that we didn't exist as society and constitution switched us on.

CJI DY Chandrachud: That's the basis on which we overruled ADM Jabalpur in Puttaswamy.

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CJI DY Chandrachud: We said that right to life does not owe its existence to the constitution. It's a recognition by the constitution. Thus, the power to suspend 21 will not suspend right to life.

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CJI DY Chandrachud: Once you say that marriage is a sacrament, you have to accept that marriage as a sacrament traces its origin to A 25.

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Dwivedi: My thrust is that there is no equality. Don't make a declaration that the marriage...

Justice Bhat: In other words you're saying there is a right to marry. But there's no right to marry outside law.

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Dwivedi: It's up to parliament if they want to make.

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CJI DY Chandrachud: Assuming you're right that it is open to the State in the exercise of its legitimate interest either to recognise a broader notion of marriage or confine it to heterosexuality.

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CJI DY Chandrachud: Equally, if we were to concede that, there may be an alternative formulation. Apart from heterosexuality, there may be other elements of that relationship which must find protection within law

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Dwivedi: It's ultimately up to parliament to decide what sort of recognition is to be given, to what extent parity is to be given.

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CJI DY Chandrachud: There are three layers one, sort of a constitutional recognition of marriage; two, the administrative or civic incidents of that relationship; and three, legislative recognition.

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CJI DY Chandrachud: Legislative acceptance undoubtedly has to emanate from parliament. The administrative or civil consequences of relationships, SG said that the government will make a committee.

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CJI DY Chandrachud: Third is how do you define, how do you give meaning to content of constitutional values.

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CJI DY Chandrachud: Even if we accept your submission, there is, even in this area, some element of constitutional jurisprudence for the court to evolve.

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Dwivedi: The court cannot give a declaration which is vague- it cannot be that some rights should be given. It has to be concrete and definite.

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Justice Bhat: Is common law seeped into our bones to an extent that everything we say needs to be executed through contempt or other proceedings? Is it not sufficient that the court says that this is the state of affairs?

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Justice Bhat: I am not just talking about the constitutional branches. I'm also talking about the society. How it is assimilated is not up to us.

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CJI DY Chandrachud: Take the case of privacy. We were conscious of the fact that if we have to implement privacy as data privacy, we can't do it ourselves. So we left it to parliament to legislate. But the very act of court granting a degree of legitimacy to privacy was vital.

Justice Narasimha: The order of the court is in the context of recognising the existence of a right. It's thereafter for the legislature. Court may not be able to take actions to implement it.

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Justice Narasimha: Once there is a recognition and court stops there, it's one of the important things...

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Dwivedi: One important aspect of these proceedings is that there is churning in the society. Because of live streaming, people are thinking about it.

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CJI DY Chandrachud: Livestreaming in court proceedings has really taken our court to the homes and hearts of common citizens.

Dwivedi: The only thing is our debates happen in English and in villages etc people cannot follow. Language problem is complex in India.

CJI DY Chandrachud: We're also working on that, even that is not lost to SC on its administrative side. We're working on it. We're working to ensure that Livestreaming content can be simultaneously made available in other languages.

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Dwivedi: There is other sexual orientation involved in heterosexual marriages. It's not that that is not a sexual orientation - women are being protected there. That is under 15(3). They're coming together for good of society - procreation.

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Sr Adv Kapil Sibal (appearing for Jamiat-Ulema-i-Hind): I'll start by saying that I was very worried at the outset when on the other side it was said that parliament is not going to do anything about it.

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Sibal: They said we don't expect Parliament to recognise this and therefore, we urge your lordships to give us a declaration. That's a very dangerous proposition.

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Sibal: Any law of this nature which is pursuant to a tectonic shift in societal values requires public discourse which includes discourse inside Parliament, in families, society.

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Sibal: Therefore, a declaration by itself on the premise that parliament is not likely to pass laws is a wrong step forward.

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Sibal: A declaration by your lordships will close the debate in parliament. There will be no scope of debate in parliament once you declare that one, it's a fundamental right; two, it has to be recognised.

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Sibal: That is something your lordships should be cautious about, nothing more than that.

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Justice Narasimha: Parliament can overrule a declaration also, no?

Sibal: No, no. Your lordships know that once your lordships have declared, parliament cannot overrule it.

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Sibal: Let's go to the heart of the matter. In NALSA, your lordships decided sexual identity, nothing more than that- of transgenders. In the privacy judgement, your lordships decided on contours of privacy- in private and public space.

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Sibal: In Navtej, you decided on decriminalisation.

Justice Bhat: Conceptually, you can say that the third one is different because It's decriminalisation.

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Sibal: What you're today deciding are two things- sexual unions and recognition by the state of sexual unions. None of these issues were looked upon, decided etc in either of the three judgements.

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Sibal: First you have to decide, are they a separate sexual identity? In the ultimate analysis my answer will be yes. Next, should they be recognised by the State? The answer is not through a declaration.

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Sibal: The question then arises- is the sexual union a marriage? If its akin to a marriage is it founded in any provision of the constitution? And for it to result in rights- it can only be done through recognition by state.

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Justice Bhat: We've now evolved to the extent of understanding - what are constitutionally manageable standards, existence of it, non existence of it, matters which aren't to be gone into by the court etc. Where would you place it?

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CJI DY Chandrachud: Can the court issue a declaration?

Justice Bhat: There is no declaration in vaccum.

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CJI DY Chandrachud: The court has in the past issued declarations. For instance, declaration which postulate that the implementation of declaration requires legislation being enacted by parliament. Right to clean environment, for eg.

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CJI DY Chandrachud: Right to education - the right for primary education found expression in the Right to Education Act.

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CJI DY Chandrachud: Therefore, at the core, to say that the court cannot issue a declaration would not be correct. Equally, we take your point that don't go in an area where you declare a right to marry.

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Sibal: Marriage is ultimately a union, social phenomenon which deals thus far with heterosexuality.

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Sibal: For example, in the absence of a law, this union of two people with sacramental vows is accepted by the society at large for thousands of years. That is essential.

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Sibal: Thus far, it applied to only heterosexual couples. It is still a marriage. But a marriage which gained acceptability for centuries. The sexual union between people who are homosexuals is still a union.

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Sibal: They have a sexual identity which is separate. It is involuntary, not a matter of choice.

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Sibal: We're not talking about sexual orientation here. We're talking about a sexual union which we're trying to give that a name. They may consider that this is my marriage. Who can stop that? Nobody.

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Sibal: The moment you say that you must recognise it- that's the problem. You may find it in 21, 14, may not find it in constitution - it is your right to be and live however.

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CJI DY Chandrachud: According to you, if court was invited to give a declaration of recognition, that would amount an imposition on others.

Sibal: Yes, that's the core issue.

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Sibal: At the moment they're saying that under the SMA, rights given to heterosexuals should be given to us. That is what they're asking.

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CJI DY Chandrachud: We're not really confined to the SMA in deciding the broader constitutional issues. So when we locate the institution of marriage, we're not confined to SMA.

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Sibal: I agree, it's also about Art 14, whether it is discriminatory. But if you find it discriminatory, where do you go from there?

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CJI DY Chandrachud: We've seen judgments. We'll require assistance on intellectual level now.

Matter to resume post lunch.

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Sibal: Acceptance is also at three levels- first by individuals, then by the family, and then by the society.

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Sibal: Who is to investigate that? This is the problem, the issue. Who is to look at that? There we need the aid of all kinds of data, opinions, debates.

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Sibal: If you look at the quintessential marriage- heterosexual couples- why has it stood the test of time? Because it has acceptance on all three levels.

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Sibal: Society recognises it and gives it a name. You don't need a constitution for that. It's an inalienable right. If you want to equate it to a heterosexual union, you need all the elements which go in heterosexual union being recognised.

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Sibal: If you look at the institution of marriage as an organic evolution of custom, you will realise that its roots are in the concept of societal standards and morality.

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Sibal: Why can't you marry your son's widow? It has nothing to do with blood relations. Because it has something to do with standards which the state recognises.

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Justice Bhat: Because it's inherent to order.

Sibal: Yes. Let's say three of us want to live together and marry. There's nothing wrong with it conceptually. Is it a marriage then?

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Sibal: Choice by itself is a slippery slope because it's elastic.

Justice Bhat: If three people want to live together, there are societies with polyandrous relationships...

Sibal: But is it recognised in law? There's nothing wrong with it, I'm not being moralistic.

Sibal: If you base it on choice it becomes difficult. If you base it on equality, it becomes even more difficult.

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Sibal: Assume that the parliament was to pass a law tomorrow in respect of same sex unions. What if that law is challenged saying that you're treating equals unequally.

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Sibal: Will you strike it down? You won't. That's the answer to the question. 14 requires equals being treated equally.

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Sibal: You can't equate a practice that has had the sanction of society for hundreds of years...you can't essentially equate these two unions in one class.

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Sibal: Just as you can't deal with transgenders in the same class as same sex- you'll have to have separate regimes.

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CJI DY Chandrachud: If we declare their sexual identity, then the court may also then have to contemplate what are the rights concomitant to...

Sibal: I'm coming to that.

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Sibal: What will happen is Ghaidan will happen.

Justice Kaul: See when those adoptions are taken place they are proceeding on a declaration that one of them is adopted.

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CJI DY Chandrachud: The circular says that though you're entitled to adopt as a single person, merely by virtue of the fact that two of you are cohabiting, we'll deny.

Sibal: That's where you have to incrementally expand.

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Sibal: You should not make a declaration at this stage, allow this to incrementally expand these rights once you give that identity. That's very important.

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CJI DY Chandrachud: How does the court then deny the fact that you're entitled to a recognition of certain other rights which flow out of recognition.

Sibal: That's for the state to do.

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Justice Bhat: Are you saying that you don't recognise what is sought but declare that they have a right to sexual identity? And rest is up to political process. This thing has to play out.

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Sibal: Yes this is my suggestion.

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Sibal: Nobody can dispute the fact that they have a separate sexual identity. Even the government hasn't disputed it. Whether that has got acceptance or not is something which will be decided by another forum.

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Sibal: All other issues qua Vishakha etc are procedural guidelines, not substantive law.

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Sibal: Kindly look at my note now.

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Sibal: Minority opinions are protected from institutional discrimination. But they cannot demand as a right that they be accorded a status that shall only be conferred by legislature.

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Sibal: The essence of the petitioners claim now is that the state must change its definition of marriage.

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Sibal: Under 21, there may exist a right to choose their partners. However, there is no fundamental right of legal recognition of such relationships.

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Sibal: Foreign judgements qua same sex marriages are delivered in the context of socio-cultural environment of the relevant country and in specific factual context. Therefore they cannot influence decision making process in India.

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Sibal: The text, purpose of SMA is only for heterosexual marriages. The court cannot misinterpret the statute.

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Sibal: When you refer to "person" under S 4 of SMA, you're referring to an unmarried person. So that's why you can't call them spouse.

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Sibal: I'll show you- what is being happening in Europe and developed world over the years. There has been a break up, an atomisation of families. Because of that problems have taken place- divorces etc.

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Sibal: This process first needs recognition, then evaluation, and then legislation.

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Sibal: I heard someone say in the Oxford Union that we are a "vote bank". Tomorrow the politicians will have to run after us because we too have votes. This is the dynamic of society. You have to allow it to play out.

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Sibal: In 1955, when law was enacted, parliament knew and chose not to declare. That is the proof of legislative intent. Both historically and through legislative intent, they don't belong in the same class.

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Sibal: The moment you cross the boundaries, the contours of privacy- you come in public sphere. Then societal responses, discussions etc come. You don't get absolute rights then.

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Justice Bhat: In the absence of an inter faith marriage law, what you're saying, could you have gone and said that I am not enabled to marry?

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Sibal: You can marry. Problem is not that. You can call it anything. Marriage is a union of people, it is inalienable - i have the right to be with anyone. It's the recognition which matters.

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Sibal: The heart of the issue is recognition.

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Sibal: For a moment assume that parliament makes a law only with reference to LGBTQIA+ unions as it has for the transgender community. Would such a law be struck down on the ground that there can be no separate law? It cannot be struck down.

Sibal: It cannot be struck down because different procedures will have to be evolved in the unique context of same sex unions.

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Justice Bhat: If you take it slightly wider in terms of the concentric circle - the largest circle, the broadest argument is that there is no fundamental right to claim any legislation.

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Sibal: That's precisely why we have the constitution. In an orderly society, you need the rules of the game to be played out on certain fundamentals.

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Justice Bhat: So you're saying is that what is being claimed is a legislation.

CJI DY Chandrachud: A legislative recognition. So your submission is okay go ahead and marry but don't insist on legislature to enact laws.

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Sibal: They relied on Obergefell and Loving. Obergefell was payment for parental care and loving was inter racial- from these two judgements they extracted the principle. Both are irrelevant.

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Justice Bhat: Loving would be akin to inter caste.

Sibal: But it was heterosexual.

Justice Bhat: It was as intensely opposed...

Sibal: But we're in a different sphere.

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Justice Bhat: No, look at social processes. It was as intensely contested, as intensely "shocking" or "blasphemous"...

Sibal: But the issue was not that all. That's all I'm saying.

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Sibal: In a way this moment should be celebrated - that your lordships are dealing with the reality of the situation. But that celebration must not result in an overreach.

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Sibal: Though it must recognise the reality and set systems in place for the state to move forward. Without moving forward, many of these people would be discriminated against. How it is to be done etc the government can ponder over it.

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Sibal: But as per me, what they've asked for is not a fundamental right. What they must get is something short of it. But something that is meaningful.

Sr Adv Sibal concludes his arguments.

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Sr Adv Datar: When your lordships say that there is a fundamental right to marry, your lordships is declaring a law.

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Datar: Once the court says that a same sex union is not a crime, then on any legislation cannot say that if two people cohabit, that's an offence.

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Datar: It is recognition that they have a right to cohabit but it was not used in the sense of marriage as in the marriage law.

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Datar: I'll now give examples of how parliament has overcome judgements- whether in reservation cases, 46th amendment, EWS etc.

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Justice Bhat: Which one of them relates to a fundamental right? When you're giving these examples, none of them relate to fundamental rights.

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Datar: All I'm saying is that when you say fundamental right to marry, proposition one is it means marriage in the sense of cohabitation, in the sense of peaceful union.

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Datar: Second, when the court says a fundamental right to marry, that means future legislation will have to take that into account, it cannot transgress that.

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Datar: Then parliament cannot debate upon it either.

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Datar: Now coming to the SMA. Let's see the 20 petitions and their prayers. Please see- there are totally 12 out of 20 petitions directly challenge various provisions of SMA.

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Datar: Only Hindu Marriage Act are 3 writ petition, Foreign Marriage Act 1 writ petition, Citizenship Act 1 petition.

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Datar: The proposition I'm making is that if a law has been made to solemnise inter faith marriages, the validity of that law made in 1954 cannot be tested on the ground that it doesn't provide recognition of same sex marriage.

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Datar: It must be tested on the object of what the parliament made it for, the stated object.

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Datar: These are newly recognised rights. You cannot strike down a 1954 law on the basis of some rights that come later.

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Justice Bhat: Their argument is that it would be a disproportionate judicial response. Therefore, include us.

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CJI DY Chandrachud: Even if they're right in asserting that same sex couple is entitled the benefit of institution of marriage, even so, you cannot challenge a legislation on ground of discrimination...

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Justice Bhat: Right to association is essentially a right to exclude.

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CJI DY Chandrachud: And there's another reason- if you strike down a law on ground that it is under-inclusive, that will not result in creation of a law which is broadly inclusive.

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CJI DY Chandrachud: That's what happened in the petition for ages of men and women to marry. The answer was simple- if we strike down 18 as age of women to marry, you won't have any law on subject at all.

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CJI DY Chandrachud: That's why under inclusive law is not struck down. Over inclusive law can be struck down because it is treating unequals equally.

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CJI DY Chandrachud: Alternative argument is don't strike it down but read it down.

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Datar: There is striking down, reading down or adding words, and updating construction. I'm going step by step. First I'm saying that you cannot strike it down.

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Datar: Now see, some of the prayers say replace words here and there to get solution. If you accept that, you're completely altering the fabric which is not permissible.

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Datar: If your lordships take Vishakha- Vishakha was guidelines but the UOI accepted those guidelines. Take triple talaq...This is a concept of collaborative governance where SC makes a declaration, filling up a vaccum. If union supports, it's collaborative governance.

Datar: But if the union is opposed to it, those guidelines should not be.

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Datar: My submission is that the SMA, the HMA- are very clearly cast. None of them call for the exercise of reading down, adding words or updating constructions.

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Datar: Lordships is to visualise Entry 5 of List 3. It contemplates marriage, divorce, adoption, wills, succession etc where customary laws prevail.

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Datar: When I searched husband or wife, I got 542 hits on SCC. Put spouse- it comes in 233 places. If you put words in SMA, you're virtually entering into a polycentric dispute.

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Datar: Navtej Johar was monocentric. Shafeen Jahan was monocentric. Joseph Shine was monocentric. But this is a polycentric dispute where a large number of provisions will be involved.

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Datar: One cannot predict what will be the side effect or collateral damage or impact on other statutes.

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Datar: I'm putting a proposition that once you recognise a right, future laws must take that recognition into account but there could be some derivative rights...

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Datar: My last submission is that if you see the Arbitration and the Conciliation Act, in the 7th schedule, in conflict of interest, explanation one, they use the word "close family member refers to spouse, sibling, child, parent, or life partner."

Datar: So they use the word life partner differently than spouse. So spouse is not necessarily inclusive of life partner.

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Datar: Decriminalisation of homosexuality was a historic moment. It would be a jewel in the crown of Supreme Court. It's a huge impact of reading down a biblical based law which was anachronist to constitutional democracy.

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Datar: But my humble submission is, making that declaration is the constitutional border of the judiciary. What rights same sex couples have- that is in territory of legislature.

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Datar: If your lordships now wants to answer the prayers, it'll amount to judicial retrofitting. The definition of retrofitting is to fit a new component into an old machinery.

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Datar: The recognition of same sex couples is a newly recognised right. It would be dangerous if these new found rights are retrofitted into old statutes.

Sr Adv Datar concludes his arguments.

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The bench has risen for the day. The hearings to continue tomorrow.

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