Thread by @barandbench

[Same Sex Marriage Hearing] DAY 9

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

5-judge Constitution bench to begin hearing today post 10:45 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…

SG Tushar Mehta: this is the time we have distributed among ourselves..

CJI: So this side will finish at 12:45..

SG: Give me 5 minutes to say a concluding prayer

#samesexmarriage #LGBTQI #gayrights

ASG Aishwarya Bhati begins: there is a basic structure of marriage and that is the union of man and woman. then there is gender fluidity is impermissible where cis gender is core and ignoring rationale of valid classification leads to inequality... there are areas reserved for… twitter.com/i/web/status/1…

Bhati: the entire architecture of the laws are from the point that the welfare of the child is paramount.

#samesexmarriage #LGBTQI #gayrights

Bhati: please see the legitimate state interest in ideal mode of child rearing. a child can only be naturally born through a heterosexual couple and thus recognition of heterosexual marriage cannot be seen differently from the child birth and upbringing and father and mother… twitter.com/i/web/status/1…

Bhati reads a paper: conventional beats unconventional everytime..

CJI: But our law permits single parents to adopt.. is it now

Bhati: I am coming to that.. human child rarely is one of the most helpless child in nature and needs all pervasive care ,, and thus mothers… twitter.com/i/web/status/1…

Justice Bhat: we have moved on.. now there are single fathers are bringing up children.. this is evolving.. what is unchanging is the welfare of the child..

Bhati: adoption is not an alternate for child birth..

CJI: There is no compulsion to have biological children and that is why our law evisages that beyond the realm of a couple having a child.. adoption is away.. what if a mother passes away... the fathers takes on both the… twitter.com/i/web/status/1…

CJI : Is it your case that a right which is available to a single person is taken away when you are in a same sex relation or marriage.. or two people in a live in relation who are heterosexual..?

Bhati: one of them can adopt... but only couple relation which allows is… twitter.com/i/web/status/1…

CJI: If a couple wants to adopt.. our law only recognise right to adopt only if you are in a heterosexual marriage..what we are asking is nonetheless law recognises right of single to adopt.. your position is right of single is not affected with the relation the person has… twitter.com/i/web/status/1…

CJI : So a live in couple cannot adopt as a couple but existence of a live in relation does not prohibit of adopting a child as a single individual

Bhati: yes

CJI: That individual right to adopt is not affected by the marital status of the individual.

CJI: Can we summarise that there is no recognition of same sex marriage..there is no recognition of a same sex couple to adopt since stability would exist according to you in a heterosexual marriage

Bhati: If spouse is read in special marriage act.. children will suffer the most.. it cannot even be fathomed... but they will suffer.. the entire architecture of this courts judgment and statutes has been from the prism of the child and no on else.

Bhat: a single man cannot adopt a girl child.. and even an adopted child can conduct a root search upon attaining majority.. 30,000 parents are registered as prospective adoptive parents in CARA and there are only 1500 children are in the pool for adoption..

CJI: Only 1500… twitter.com/i/web/status/1…

Sr Adv Maninder Singh submits

Sr Adv Nadkarni: concept of marriage in Indian society is an institution by itself.. whether in Hindu law it is a sacrament so divine..in Mohammedan law a contract.. recognising same sex marriage is an attack on this institution... please see… twitter.com/i/web/status/1…

Nadkarni: India has not reached that level that a union of this kind can be allowed. #samesexmarriage

Adv Manisha Lavkumar Shah appears for the state of Gujarat: marriage is a public act between two consenting individuals... SMA is part of a wider spectrum...

#samesexmarriage

Shah: marriage has very serious consequences. This court is examining the edifice of a social institution and a myriad of marital statutes.. it is an entire regime which is regulated.. all of this is based on heteronormative relation..

Justice Bhat: what do you mean by sanctification narrative in context of heterosexual marriages

Shah: institution of marriage predated any legislation.. just take prohibited relationship under section 4(D)...

#samesexmarriage .

Shah: any recognition de hors a regulatory regime will not be proper.. what will happen to prohibited relationships etc then ..petitioners saying parliament will not look into it is not correct.. ordinarily the court will leave it to the parliament..

Adv J Sai Deepak: I kept hearing constitution is a liberal document... is it to say that social conservatism has no place in the constitution... does the society have no role to say and draw a red line that thus far and no further.. i believe that they have a cause but I do not… twitter.com/i/web/status/1…

Adv J Sai Deepak: even with respect of SMA, society has a right to participate. i have placed reliance of manual of parliamentary procedures...

#samesexmarriage

Adv J Sai Deepak: judicial mechanism cannot be a substitute to any of the steps in the parliamentary process. in hindu law the object of dampatiya is procreation... now question on what happens to a single homosexual parent: when normative attitudes are sought to be represented..… twitter.com/i/web/status/1…

Adv J Sai Deepak reads a judgment ..

Justice Bhat: yes we know these judgments, and we know how to read them, we dont have to be taught.

#samesexmarriage

J Sai Deepak: the yogyakarta principle leaves it to the countries to decide if they want to recognise such marital unions... if judicial intervention is allowed in this case.. then what happens in the future has to be seen, there are other issues.. having engaged with some… twitter.com/i/web/status/1…

Adv MR Shamshad: The Dissolution of Muslim Marriages Act, 1939 refers to the ways of dissolution of marriage.. but as a mode also refers to ways under the Muslim personal law.. if this right of same sex marriage is recognised.. not only it will be recognised in personal laws..… twitter.com/i/web/status/1…

BJD Rajya Sabha MP Sasmit Patra: I will speak on impact on public policy due to legislative process and I also speak on the parliamentary process. Please see the Jan Vishwas Bill 2022... Without personal laws in ambit this issue of same sex marriage cannot be taken up

Patra: 42 laws will be affected, 118 amendments will be needed dealing with 19 laws... Look at the surrogacy bill ..sensitive... Sent to a committee and now sent to parliament. A mediation bill was sent to the committee and 23 meetings have taken place..this shows capacity and… twitter.com/i/web/status/1…

Intervenor: same sex relation being recognised will lead to bigamy in the country

CJI: We got it

Intervenor: let me explain it

CJI: No no we got it.. we get the thought behind it #samesexmarriage

Adv Shashank Shekhar Jha: marriage is not a private affair, it is a social affair

CJI: thank you we got

Jha: we need new laws to accomodate rights to homosexual unions

CJI: Got it

Adv AP Singh: homosexuality is not natural..and such union is not natural

CJI: ok thanks we got it...

Adv Anston Thomas: CJI should recuse from this particular matter

CJI: Application rejected. thank you

SG Tushar Mehta: I object to this submission being made

#supremecourt #samesexmarriage

SG Tushar Mehta: any declaration of law would bind every individual in this country who is not even before this court. We knew about the judgment in bakers case where he refused to bake a cake in a same sex marriage case and he was prosecuted.. and then a pastor refused to… twitter.com/i/web/status/1…

Justice Bhat: what is the form, contour of declaration is important.. we all are thinking grant this and grant that..

SG: Legislature has the wherewithal of dealing with the fall out..,

CJI: So any declaration will apply to all and pre empt the legislature..

SG: Legislature… twitter.com/i/web/status/1…

SG: We have seven responses from state govenrments.. Rajasthan has taken a position that they have examined it and they oppose it and all rest say that this needs an expansive debate and we wont be able to respond immediately #samesexmarriage

[REJOINDER BEGINS]

Dr AM Singhvi: my arguments are broadly are under three heads: first, that a constitution compliant reading ..

SG: how can the notice etc of SMA be argued now since we did not address the point.. it was stated that the case will be heard separately

CJI: yes… twitter.com/i/web/status/1…

Justice Kaul: it is being felt that since it is liked with heterosexual marriage it will be appropriate to hear it with both kinds... bench is saying let it rule that you have a right of marriage first or not.

Singhvi: my first point is constitution compliant reading of the… twitter.com/i/web/status/1…

Singhvi: was the Navtej Johar judgment not a value judgment?

CJI: No it was not

Justice Bhat: you are not taking it heads on.. you have to say that classification is not correct.. but you are not going that far because you have no locus... otherwise say strike down.. just… twitter.com/i/web/status/1…

Justice Bhat: say that the classification is illegal

Singhvi: yes i am saying that

Justice Bhat: so heterosexual classification is illegal?

Singhvi: it can become legal when you read spouse person in SMA

Justice Kohli: but there was never any challenge to the classification..… twitter.com/i/web/status/1…

Singhvi: today the number of queer people have gone up.. so when there is a secular agnostic platform for heterosexuals why not for them...

Singhvi: give me some time tomorrow

CJI: There is a reference tomorrow. there are 2 constitution bench judgments we are pronouncing… twitter.com/i/web/status/1…

CJI: Reference will be 10:30 to 11... then 2 constitution bench judgments which will take 20 minutes.. then let everyone finish by 1 pm from 12 pm #SupremeCourtofIndia

Singhvi: petitioners are only asking for non discriminatory access to rights.

#samesexmarriage

Justice Bhat: 2 spouse of same sex. if one dies.. then what is the kind of estate they will inherit.. if its a so you treat as son and daughter is treated as daughter.. but what about spouse

CJI: When a male intestate dies then the spouse is the next in kin... now you want to… twitter.com/i/web/status/1…

Justice Bhat: so we are not reading in, we are not reading up, we are not striking down, not upholding..

CJI DY Chandrachud: Dr Singhvi. we are not writing a blog, we have to write a judgment

#samesexmarriage

Sr Adv Mukul Rohatgi: if you don't agree to SMA, this court grants us a declaration that we have a right to marry... we need some document saying that we are married.. i cannot take the judgment... we would be asked for proof.. a document of marriage between two individuals can… twitter.com/i/web/status/1…

Bench rises
The final leg of submissions to commence tomorrow at 12 pm
#samesexmarriage #supremecourt