Thread by @LiveLawIndia

[Marriage Equality Petitions in #SupremeCourt- Day 9]

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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ASG Bhati: Though the application is filed by NCPCR, a lot of reliance was also placed on ministries and CARA. So your lordships may see this as a comprehensive submission.

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ASG Bhati: First I've submitted that there is a basic structure of marriage and that is a union of man and woman. Second, gender fluidity is impermissible where cis gender is core.

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ASG Bhati: Ignoring rationale of valid classification amounts to perpetuating inequality. I've given examples of areas specifically for women. If these spaces are diluted then what will be lost is cause of women's equality and empowerment.

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ASG Bhati: When your lordships recognised transgenders as third gender in NALSA, your lordships did not retrofit the two existing genders. You identified them as a third gender.

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ASG Bhati: Gender fluidity cannot be permitted in areas where cis gender is core.

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ASG Bhati: Welfare of child is paramount and cannot be opened for even an iota of compromise and uncertainty.

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ASG Bhati: Child has a right to be born and raised by biological parents.

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ASG Bhati: The entire architecture of these laws is from perspective of welfare of child being paramount.

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ASG Bhati: The fundamental point is that a child can only be naturally born through a heterosexual couple. Therefore, the special significance of recognition of heterosexual marriages cannot be understated.

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ASG Bhati: Fathers and mothers both play complimentary roles in upbringing of child. State is justified in treating homosexual and heterosexual unions differently for that purpose.

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ASG Bhati (reads from an article): "It is not just the presence of two parents, but the presence of two biological parents that seem to support child development." This is a Pennsylvania Uni professor.

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ASG Bhati: The entire architecture of legislations with regards to child- it's the child alone who has the rights. Please see the Juvenile Justice Act.

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ASG Bhati: Even mother of the child has been strongly protected not just in the Constitution but also the JJ Act, the Maternity Benefits act. Gender may be fluid but the idea of mother cannot be.

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Justice Kohli: Forget about the gender part. There are situations where there is just one father.

Justice Bhat: We've gone beyond motherhood and gone into parenthood. There are single parents too. There is death at child birth, accident.

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Justice Bhat: Likewise you can be adopted children of just the male... it's an evolving scene. What is central to this and what remains unchanged is the welfare of child.

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ASG Bhati: This method of naturally born from heterosexual couples bring them up is the ideal mode and the law has provided for children who do not have that...

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ASG Bhati: From that perspective see adoption. I have given an example of sponsorship. It is available to only widowed, divorced, abandoned mothers- to seek sponsorship for their children.

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ASG Bhati: Adoption is not an alternate to biological birth.

CJI DY Chandrachud: Law does recognise that you can adopt for a variety of reasons. You can adopt even if you're capable of biological birth. There's no compulsion of having biological birth.

#MarriageEquality

CJI DY Chandrachud: Law recognises that there may be situations apart from this "ideal family" having their own biological children. What happens during pendency of heterosexual marriage and one spouse dies?

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ASG Bhati: The law recognises from perspective of child. Your lordships have held that there is no fundamental right of adoption.

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Justice Bhat: Even if you go back to tradition, right of a grandfather to take in adoption the son of the daughter - that is a known notion. It is a part of tradition. To say it's an exception may not be appropriate.

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Justice Bhat: There are situations where adoptions take place and thereafter there is biological children. There are many situations where adoption is the norm.

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ASG Bhati: My endeavour is to present to your lordships that all of this is crafted together from the perspective of child being at the core.

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CJI DY Chandrachud: But the means of realising that welfare are numerous- some a matter of choice, some matter of compulsion.

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CJI DY Chandrachud: Is it your case that a right otherwise available to an individual to adopt a child is taken away because that individual is in a relationship other than a heterosexual marriage?

ASG Bhati: That is right.

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CJI DY Chandrachud: So if two people are in a live in relationship, even if they're a heterosexual couple, they wouldn't have a right to adopt?

ASG Bhati: Not under the existing law.

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CJI DY Chandrachud: But would the right of one of them be taken away because he/she is in a live in relationship?

ASG Bhati: One of them can adopt but the only recognised couple is a heterosexual married couple.

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CJI DY Chandrachud: My question is if people are in a live in relationship, is the right of an individual to adopt taken away by virtue of the fact that they're in a live in relationship?;

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Justice Kohli: And then let's say a person per se says that they're not in a live in relationship and subsequently does get into a live in relationship. Then what happens? Will the child be taken back?

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ASG Bhati: There is provision for disruption and dissolution in adoption also.

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Justice Kohli: So if a person adopts, will they have to undertake that for the rest of the life they won't be in a live in relationship?

ASG Bhati: No, no there is no undertaking.

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ASG Bhati: Heterosexual couple also has to show two years of stable marriage to adopt.

Justice Kohli: And if they're a single parent?

ASG Bhati: There are different considerations- age, gender

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Justice Bhat: Even in case of disruption- let's say divorce takes place, even then the relationship of an adoptive child continues.

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Justice Bhat: You're saying that since there is no marriage, that stability would be affected.

ASG Bhati: I bow down.

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ASG Bhati: Live in relationship is also not recognised.

CJI DY Chandrachud: So live in couple can also not adopt as a couple?

ASG Bhati: Yes because they can walk out anytime.

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CJI DY Chandrachud: But the existence of a live in relationship doesn't prohibit one of the parties to adopt a child individually.

Justice Bhat: So one person is responsible. That stability is what you want.

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CJI DY Chandrachud: So you're saying that just as there is no recognition of same sex married couple, there is no recognition of the right of a same sex couple to adopt a child as a couple. That is based on the foundation that a child must have a stable family existence.

ASG Bhati: In Navtej, in X, in NALSA, your lordships were dealing with competing rights. Marriage as an institution with procreation being such a fundamental core to it- if your lordships read 'spouse' it is going to impact children laws the most.

#MarriageEquality

ASG Bhati: See this judgment on inter country adoption. The entire regime of JJ Act and CARA came because of your lordships nudge and push.

Justice Bhat: Aren't you serving the petitioner's cause by pointing to this vaccum?

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ASG Bhati: My submission is that your lordships may go slowest when it comes to child rights.

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Justice Bhat: You must show children in the context of same sex couples.

ASG Bhati: This architecture is carefully crafted. Heterosexual couples also don't have rights that equate- a single man and single woman don't have same rights.

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ASG Bhati: The architecture of child centric laws is very carefully crafted with child being paramount. Any general declaration with reading 'spouse' instead of husband and wife will make laws related to adoption, assisted reproduction, surrogacy completely unworkable.

Sr Adv Maninder Singh: Inability to procreate is a ground for divorce- in all three personal laws of Hindus, Christians, and Muslims.

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Counsel: I appear for Akhil Bharat Samiti. Only two points- a. The concept of marriage in Indian society is creation of an institution by itself. Concept of same sex marriage would be virtually like an attack.

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Counsel: The second point is- if you look at Sections 19, 20, 21A of SMA- if you marry under this law it is not connected to Hindu marriage act. But it also states that two Hindus can marry.

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Counsel: India has not reached that level yet.

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Adv Manisha: Reading up/reading down of laws governing marriage, especially SMA, would lead to altering of cultural edifice.

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Adv Manisha: It is not a case of exclusion or prohibition but a case of non inclusion in a targeted legislation enacted with special aims and objects.

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Adv Manisha: The SMA is part of a wider spectrum of matrimonial laws. All such laws are heteronormative in structure.

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Adv Manisha: All of them refer to heterosexual unions, all of them prescribe monogamy, all of them prescribe minimum age of marriage, and all carry proscription of prohibitive degrees.

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Adv Manisha: There is an entire regime being regulated by this. Looking at it as isolated will not be possible.

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Adv Manisha: There is social legislation on this- S 113A of Evidence act or stridhan under Hindu Marriage Act.

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Adv Manisha: The rules of marriage may continue to evolve but they must remain grounded in organising heterosexual relationships.

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Justice Bhat: You called this a sanctification narrative. Can you explain?

Adv Manisha Shah: This principle of sanctification lies in the fact that the institution of marriage pre dates any legislation.

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Shah: It's not a mere task of declaration but it has serious ramifications in considering the entire marriage regime and the ancillary social laws.

Advocate Manisha Shah was appearing for State of Gujarat.

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Adv J Sai Deepak: The central issue is between fetters and powers, which is to say that this area either falls in the prohibited areas or within my lords ambit- that is the central issue.

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Deepak: When the petitions raise the question of change in heteronormative attitudes- does the society get rights to participate in these proceedings or not?

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Deepak: Does it mean that social conservativeness has no place in constitution? Does it mean that society has no right to draw a few red lines? That's the question.

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Deepak: I represent a women's organisation which equally represents the rights of children.

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Deepak: The nature of the prayers raised in the petitions has the consequence of individualising a social institution such as marriage.

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Deepak: This fundamentally demeans the institution of marriage and takes away its social character.

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Deepak: I believe they have a cause. I don't believe they have a case. It is important for court to consider that when there are issues of legislative competence, there is another figure involved under Article 111 of constitution.

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Deepak: Those who constitute the norm are not being allowed to participate in the proceedings - they're defeating the purpose of advocacy.

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Deepak: Those who are interested in convincing the society are expected to engage with the rest of the society to make good their cause. The judiciary cannot be a substitute to this process.

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Deepak: The benefit of revisitation to judgements is not an adequate substitute. A judgement is not to be read as a statute.

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Justice Bhat: We are perhaps aware on how to read these judgements. We don't need to be taught.

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Deepak: In Hindu law the object of dampatiya is procreation. The question on what happens to a single homosexual parent: when normative attitudes are sought to be represented, those who represent normative attitude cannot be circumvented by resorting to judicial intervention.

Deepak: Yogyakarta Principles specifically leaves it to countries to decide if they wish to have recognition in respect of marital relations.

Deepak: There are other issues to be dealt with. Having engaged with transgender activists and having worked with them, I know that one of the biggest problems is trafficking- them being pushed into prostituition, not having livelihoods.

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Deepak: These issues have to be addressed first before we take the next step. That's all I have to say, thank you.

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Adv MR Shamshad: As far as matrimonial legislations are concerned, even in those legislations, there is scope for customs, practices- which have been practiced for long.

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Shamshad: Even in a statutory regimes, undefined customs and practices have been made part of the statutes.

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Shamshad: In S 3 of Muslim Women Protection of Divorce, 1966, there are practices of Muslims which are recognised. 1939 act of dissolution act sets out grounds for divorce but it says that other grounds acknowledged in Muslim personal laws...

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Shamshad: Even reading of SMA takes us through customs - Sections 19-21 if we read it together, it takes us to Hindu Succession Act and they're uncodified customs.

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Shamshad: As far as declaration is concerned, I completely adopt the arguments of Mr Dwivedi and the Learned SG. If you declare this right- within the realm of personal laws, that relationship may not be recognised.

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Shamshad: If someone goes to Hajj committee and says i have a constitutionally declared right to remain as a union and I wanna go on a Hajj as a married couple- these are problems faced by even statutory bodies.

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Counsel: I am representing a student. I have three lines of arguments - one is about history and marriage aspect, then about canvas opened up.

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Counsel: The ASG addressed about adoption and kids. What about our children who are going to school? They have been receiving a lot of propagation going on and we need a little protection for them at this tender age.

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Another counsel: Can there be a declaration that an absence of recognition is void? What would be the consequence of this?

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Adv Sasmit Patra: I am representing two organisations. I'm also at a personal capacity as a member of parliament of Rajya sabha.

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Patra: First is the capacity of parliament hasn't been taken into consideration.

CJI DY Chandrachud: We'll come back after lunch and hear you after lunch.

The bench rises for lunch.

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Patra: Three points- First, capacity and functionality of parliament. I also happen to be a chairperson of rajya sabha and I'm trying to give evidence for why parliament should hear it. Second, role of the polity.

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Patra: Third is impact on public polity due to absence of legislative action.

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Patra: Without the personal laws being in the ambit, this matter cannot be taken up. Through this Jan Vishwas bill, I'll show how parliament has capacity and functionality to deal with a matter with wide ramifications.

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Patra: 42 laws of this country in some way will be affected. 42 laws, 182 amendments, across 19 ministries of country. So for something as mammoth as this, it is parliamentary committee which has capability to deal with the matter.

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Patra: The surrogacy bill- sensitive - sent to a select committee, dealt with appropriately. Then there is the mediation bill which will be tabled in parliament soon- 23 meetings have gone through to ensure a full proof law.

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Patra: Role of polity is second. We may talk about it as a social construct but unless you flesh it out by role of polity, it will not be fruitful.

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Patra: My final point is the impact on public policy due to legislative actions. Let's assume we have a declaration - how do we execute it?

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Patra: In Navtej, you have a declaration as a fundamental right, taken up. In Vishakha, it went into a law. In Shayara Bano, a law. In this case, because the parliament hasn't dealt with it, we may have a declaration, but the parliament won't make a law.

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Patra: What will happen is you'll have contempt notice coming up. I close my arguments here.

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Adv Atulesh Kumar: Even though you're not considering the personal laws, SMA is not in isolation.

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Adv Sanjeevni Agarwal: Under A 21 right to marry is a universal right but it is not a fundamental right. India is a nation still fighting for basic girl child rights.

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Agarwal: There are still questions to be resolved to lay the foundation of modern society especially in schools where children aren't aware of what same sex marriage is.

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Agarwal: In a parent-teaching meeting, how will a child react to some one having same sex parents?

CJI DY Chandrachud: So social acceptability. It has been covered.

Agarwal: Thank you.

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Adv Som Thomas: Marriage is a biological institution before it is a social institution. Indian law is substantive in its coverage. Many jurisdictions that have legalised it are procedural.

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Thomas: There is a sense of fulfilling a sexual responsibility in marriage. If that responsibility cannot be fulfilled, marriage fails.

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Thomas: There is no cause for the government to give privilege to relationships that claim to be in varied colours including multi partner relationships.

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Thomas: In my corporate career, between the period of Naz and Kaushal, my company itself allowed employees to declare a partner for insurance. These are doable things without getting into aspect of marriage.

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Counsel: Recognition or declaration of bisexual or pansexual persons marriage will directly lead to bigamy and polygamy in this country. I'll explain.

CJI DY Chandrachud: No you made your point, please don't explain.

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Adv Shashank Jha: Marriage is not private, it's a social affair. Same sex marriage is expected in heterosexual society. But law, the heterosexual law is not competent. So you'd need new laws.

CJI DY Chandrachud: Okay, got it.

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Intervenors make their submissions.

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Adv Anson Thomas(intervenor): Chief justice of India should recuse from hearing this matter.

CJI DY Chandrachud: Application rejected.

SG Mehta: Since he has made the submission, I officially object to this submission.

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SG Mehta: Your lordships declaration would be within the meaning of law, binding the whole nation.

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SG Mehta: Any declaration would bind every individual in the country who is not before your lordships. In case of a law, every individual is represented by his chosen representative.

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SG Mehta: Your lordships may be aware of that Baker's case where the baker refused to bake a cake for a same sex couple, he was prosecuted. Similar thing happened after the judgement of American court.

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SG Mehta: One pastor refused to perform ceremony of marriage. He was sought to be prosecuted. They had to come out with a law for pastor's Protection.

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SG Mehta: Imagine a situation where your lordships declare the law. Your lordships will not be declaring the contours of regulations. Suppose someone goes to a priest for performing a ritual.

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SG Mehta: Priest says that as per my religion only man and woman can perform that ritual and i won't be party to this. Would he not be in contempt of declaration of this court?

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Justice Bhat: That is that priest's fundamental right to follow his conscience and faith.

SG Mehta: Where does his conscience stops and where does that duty begin?

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Justice Bhat: That is why the content of declaration is important. You're all presuming that declaration will be in form of a writ- grant this or that. This is what we're accustomed to.

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Justice Bhat: What I'm hinting towards is as a constitutional court, we recognise only a state of affairs and draw the limit there.

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SG Mehta: Whenever a declaration is made by legislature, legislature has the power to regulate the fall out. Your lordships would not be able to foresee and thereafter deal with the fall out.

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SG Mehta: We've written letters to the state governments. There are 7 responses from Manipur, AP, UP, Maharashtra, Assam, Sikkim, and Rajasthan. Rajasthan takes the position that we've examined this and we oppose to the position of petitioners. Rest say this needs debate.

Dr AM Singhvi (in his rejoinder): This whole excessive to the point of being wrong emphasis on legislative intent- I'll deal with this.

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Singhvi: Then the "scare" argument - oh my lords how will you deal? The workability argument- I'll deal with that too. And then the notice argument.

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SG Mehta: The notice argument is to be dealt with seperately.

CJI DY Chandrachud: Mr Singhvi, keep it aside because we haven't heard the others.

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CJI DY Chandrachud: We have petitions specifically challenging this.

Singhvi: Merely because it's common to other segment...

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Singhvi: I raised and argued it fully. Your lordships observed that we'll take a call later.

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Justice Bhat: There is no reference order per se. Order for implicit on this premise that the claim for same sex marriage was being considered. Nobody pointed out nittigritties of this. So to stand up and say we've been heard, insisting we must be heard is not up to you

Singhvi: I argued for almost half an hour on this. The only issue is that your lordships have not heard them (heterosexual couples) so you can hear them briefly.

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CJI DY Chandrachud: Your argument in the challenge to notice provisions postulates a verdict in your favour that there is a right to marriage under the SMA.

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CJI DY Chandrachud: Otherwise the notice provision doesn't apply to same sex couples at all. Your challenge to S 7 and 10 has to be deferred to a point when we have ruled on legality of same sex marriage.

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Justice Kohli: We might be putting the cart before the horse.

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Singhvi: I bow down that point of notice and objection arises only if your lordships hold me eligible under SMA. However, if your lordships so hold the first part, the other is inextricably intertwined. Without it, much of my right is hollow.

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Singhvi: The vulnerability, the practical operation, the invitation to violence- will make that right 50-70% illusory.

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Justice Kaul: What is being suggested to you is let the bench rule on the principal aspect- are you entitled to declaration of right to marry or not. It's not as if you're shut out from arguing that.

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Singhvi: Please hear my three points and then you can decide.
1. A constitution compliant reading of the SMA is within bounds of legitimate statutory interpretation.

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Singhvi: 2. The relief i seek is workable and neither requires this court to create a new social institution.

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Singhvi: Nor, it requires to have a new definition of marriage.

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Singhvi: Thirdly, it doesn't require you to enter into any thicket of personal laws or other related laws.

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Singhvi: The prayer for striking down the notice and objection regime of SMA is an essential and indivisible component of my prayer for marriage equality.

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Singhvi: Without this third head, you would recognise the same sex marriage but not equality. You would grant marriage but not equality.

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Singhvi: We not only seek a declaration of right to marry but a right to marry under the SMA by an interpretation of SMA which will allow the solemnisation of non heterosexual marriages.

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Singhvi: We're seeking a right to access this social institution of marriage on equal terms. The irony is that my learned friend accepts that this is a sanctified social institution, people must have access but not you and not on equal terms.

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Singhvi: This case is about interpretation to apply an existing law in a non discriminatory fashion. There is no judicial legislation, no judicial surgery. Your lordships have done much more.

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Singhvi (on interpretation): There were laws passed by legislature of USA. One law said that male people below and IQ of x must be sterilised because you shouldn't have a society of idiots. That law was upheld!

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Singhvi: Second example was women should be barred from legal profession because of roughness of the profession. Also upheld. Therefore original intent- it is unelected judges who are masters of interpretations.

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Singhvi: Don't not do it because the legislature may not do it- that's not right. Please don't be swayed by this argument that elected legislature, unelected judges, majority - whole advance of laws is full of examples to the contrary.

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Singhvi: There is a value judgement in all these cases. Was Navtej not a value judgement?

CJI DY Chandrachud: No, no

Justice Bhat: Navtej- the court was within it's constitutional bounds.

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CJI DY Chandrachud: Your argument is that any notion of marriage as a social institution which excludes same sex couples would be violative of constitution preset. Their argument is that marriage is conventionally understood as a heterosexual union.

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CJI DY Chandrachud: You're saying that in order to make it constitutionally compliant, read that social institution as also having within its fold same sex unions. That's very different from what we did in Navtej.

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Singhvi: I could enter the gate with a voidness challenge. Can I not ask for lesser?

Justice Bhat: It's not a question of lesser. You should be able to say this is wrong classification, I'm taking it head on, strike it down.

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Justice Bhat: You're not willing to take it that far because you have no locus.

Singhvi: Number one, I am entitled to challenge it on ground of discrimination and an arbitrary exclusion. But the consequence must be striked down.

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Singhvi: If your lordships within the bounds of judicial review, are able to read down something, does your lordships not uphold the act a hundred times?

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Singhvi: Classification which is invalid becomes valid by your lordships reading "spouse" "person" everywhere.

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Singhvi: As a proposition of law, am I entitled to come to your lordships and say that a. I have direct locus because I'm that class which is affected; b. I'm the class excluded because the exclusion occurs on ascriptive characteristics of sex, gender.

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Singhvi: Third, I'm saying that reading down will validate the law. I don't wanna change any other part of law. Why am I compelled to challenge its validity?

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CJI DY Chandrachud: Even if you were compelled to challenge its validity, that would be postulated on the hypothesis that any statutory recognition of marriage as being confined to heterosexual man and woman is unconstitutional.

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CJI DY Chandrachud: What you would then seek is expansion by the court of the notion of marriage so as to include class other than heterosexuals. That's the problem. The court in process of reading down would read down a statute would expanse the statute.

Singhvi: Call it reading up, I have no problem.

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CJI DY Chandrachud: Can we go down that far and say that look the very social institution of marriage as including a relationship only between a man and woman is unconstitutional? Even you won't take it that far

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Singhvi: If you continue to read SMA to exclude same sex couples, then SMA as a legal proposition is unconstitutional under 14,19,21.

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Singhvi: Marriage as a legal institution needs my access on equal terms as heterosexual couples. My stoppage of access and not on equal terms is my violation of 14 and 15.

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Singhvi: This differentiation is based solely on ascriptive characteristics. It's exclusion must be struck down.

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Singhvi: Overall, is it something which your lordships should not do because of an original intent interpretation? Answer has to be no.

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Singhvi: Your lordships will then juxtapose it with the agnostic crux of the SMA. Today, we have a recognition that the numbers of queer people is very large. They were always there but not accepted.

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Singhvi: SMA's entire birth - the whole purpose was to facilitate marriages. In that sense, SMA was a significant advance because it was dealing with marriages outside social acceptability.

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Singhvi: Social acceptability is the heart of SMA.

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Singhvi: Give me some time tomorrow. Rejoinder is the last stage.

CJI DY Chandrachud: Tomorrow is a crowded morning. We have a reference. Then two CB bench judgments we're pronouncing. Today we had 276 mentionings in morning.

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CJI DY Chandrachud: The reference is between 10.30-11. then CB 20 mins. Then mentioning for half an hour. So we would be able to hear at 12. So everyone will have to wrap up between 12-1.

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Singhvi: Right to marry along with a scheme for its implementation already exists. Petitioners are only asking for non discriminatory right to access to that institution.

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Singhvi: The main part of this "workability" is personal laws...these apprehensions are largely red herring.

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Singhvi: In particular, Section 19 of the SMA severs ties of persons of Hindu, Buddhist, Sikh, or Jaina religions married under the SMA from their undivided family.

Singhvi: At the same time, Section 21 provides that succession to the property of any person married under the SMA will be governed by the provisions of the Indian Succession Act, 1925 (‘ISA’).

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Singhvi: Section 21A does not create a barrier to a constitution-compliant reading of the SMA. 21A only applies for marriages of two Hindus. Further, even when two Hindus marry under the SMA, Section 21A links the SMA regime to personal law only in narrow respects,

Singhvi: According to me it is a scare argument to say that so much is happening. First, Court may elect not to pronounce on applicability of Section 21A to non-heterosexual Hindu couples in the present litigation, and leave
questions of succession open for future litigation.

Singhvi: Or the court may hold that the SMA will apply to non-heterosexual couples exactly as it is applied to heterosexual couples by virtue of the introduction of 21A.

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CJI DY Chandrachud: You're saying that to achieve this reading, this court may extend it's gender neutral reading to the HSA and ISA?

Singhvi: Correct. It means that your lordships will first put a caveat in the beginning that we're not getting into personal laws.

Singhvi: Second, you may say that all heterosexual couples are governed with 21A in only ISA except for Hindu couples.

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Singhvi: Third, for Hindu couples, the agnostic reading will be to words like male, female, widow, widower.

CJI DY Chandrachud: In other words, we're creating a new regime.

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Justice Bhat: Two spouses of the same sex- one dies. What kind of estate that she...when it comes to adoption of a male, you'll be treated as a son. When it's a female you'll be treated as a daughter. Question is what is that spouse?

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CJI DY Chandrachud: When a male Hindu dues interstate, the first priority is to the widow. If it is a same sex male couple and male has died interstate, there would be no widow.

Singhvi: No my lords.

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Singhvi: It can be surviving spouse.

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Singhvi: Court may hold that personal law-related issues are beyond scope of this litigation, it follows that personal law statutes as well as provisions of secular laws that relate back to personal laws are excluded from consideration.

Singhvi: Since Section 21A itself was introduced as an exception to the regime under Sections 19-21, of the issue of Section 21A would simply mean a reversion to the default regime of ISA.

Justice Kohli: Are we reading up or are we reading down?

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Singhvi: There are two options - either it will all fall under ISA or your lordships can apply "spouse" and "person" interpretation for HSA.

Justice Bhat: So we come back to the old position. When it comes to same sex couples, we'll interpret in a particular manner.

Justice Bhat: Then there is a classification amongst the same sex couples. You're saying that those who fall in 21A- treat them differently, rest leave to ISA. You're actually sub classifying.

CJI DY Chandrachud: So non heterosexual couples will be governed exclusively by ISA?

Justice Bhat: Then neither are we reading down, nor are we reading up, nor are we striking down 21A.

Singhvi: Let us say we keep 21A...

CJI DY Chandrachud: We're not writing a blog, we're writing a judgement.

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Singhvi: Let me tell your lordships how i would respectfully submit a judgement can be written with 21A existing. And it certainly will not be a blog.

Justice Bhat: You may have that legislator's pen elsewhere. You can't persuade us here.

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Singhvi: Just see the conclusion. It would not follow from this approach that non-heterosexual Hindu couples who marry under the SMA would be excluded from legal succession regimes altogether.

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Sr Adv Mukul Rohatgi: I wish to give a suggestion. If you agree to some part of SMA, then it is there. If you don't agree to SMA, your lordships grant us a declaration that we can marry. We require a state recognition, a document.

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Rohatgi: A document of marriage by way of an affidavit between two parties that I take you as a spouse can be made under S 18 of the Registration Act.

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Rohatgi: So that way I steer clear of SMA. I have an affidavit, I can have a registration with that.

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The bench rises for the day.

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