Same-sex marriage hearing Updates: No data to show it is 'elitist concept' - CJI

The second day of the Supreme Court hearing of pleas to legalise marriage for same-sex and alternative sexuality couples - which the government opposes - began Wednesday with a reference to the oft-repeated rant against LGBTQIA+ relationships - they are 'against the order of nature'. Read more

Day 2 of the hearing comes to an end.  Singhvi to continue submissions tomorrow. 

Singhvi: A lesbian couple may have children by donor insemination and a gay couple may bring a child of someone else or adopt.. homosexual couples can have same interdependent sexual relation like heterosexual couples.

Singhvi highlighted another issue raised by the the Centre that same-sex marriage is against cultural and traditional understanding of marriage. 'Special Marriage Act was enacted as being agnostic to faith,' he says.

Singhvi: The third pillar is dignity. Dignity is "to treat everyone with equal concern and respect" and not to send a message that any individual is worth less because of their ascriptive characteristics.

CJI DY Chandrachud: It is not so much as statutory silence as much as failure to enact a law.

Singhvi: More than failure to enact, they will not recognise.

Singhvi: If they can't do it for heterosexual couples because your lordships will undoubtedly hold it as an unreasonable restriction, how is it a reasonable restriction for me?

Singhvi: The silence is being read in the counter and the stand of the government as a restriction.

The Supreme Court on Wednesday resumed its hearing on the issue of recognising “same-sex marriage”. A five-judge Constitution bench led by Chief Justice D Y Chandrachud has been constituted to oversee the proceedings. Other members of the bench comprised Justices S K Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli. Read more

Singhvi: The right is being questioned on the ground that the rights heterosexuals have, non heterosexual couples do not have.

The projection of the gender identity, which is a part of free speech, is inhibited by your stand which allows that right unfettered in heterosexual category.

Singhvi: Third and the last prong is the dignity point under Article 21. This is actually intersection of 14 with 19(1)(a)- the right to express one's gender identity is being questioned by the State without a law under 19(2).

Singhvi: If a law was made, which part of 19(2) can be relatable to when the core values of Constitution your lordships is discussing.

Hypothetically, the very text of 19(2) doesn't make it easy to think of a law which can be made- it's a hypothetical argument made to show the contrast.

Singhvi: Freedom of expression includes the freedom or the right to express one's gender identity in all its manifestations.

Singhvi: Your lordship is allowing the creation of hierarchy between different conceptions of the family- involving unions between some kinds of persons more equal than others to have unions.

Hierarchy, which is a sub classification, your lordship will not allow under Article 14.

Singhvi: Text evolves over time, even intent evolves over time. Your lordship is looking not to strike down anything but to make it constitutionally compliant.

Singhvi: It is wrong to think that text of the statute is a limitation. It is wrong to think that even intent is a limitation. With evolving dynamics of time and society, the two tests are to make it treaty compliant...

Singhvi: There is another facet of manifestly arbitrariness.. now there is substantive fairness.. now these atypical manifestations of family units are not only deserving of protection of law but also social welfare institutions

CJI: The basis of a classification cannot be conflated with a purpose..

Singhvi cites a judgment regarding evening law classes for candidates... societal values cannot trump non discriminatory principles..

Singhvi: I dont marry because i want to get a tax benefit... some people do..

Justice Kaul: some people get separated to get tax benefits.

Justice Hima Kohli: i was about to say this..

CJI: if a couple is in gay or lesbian relationship can still adopt , so the entire argument LGBTQ couple raising will impact children is belied since . either of the gay or lesbian can adopt..just that the child loses the aspect of parenthood.

Singhvi: You can't trump equality principles by reference to societal values. If I'm here on exclusion, based on discrimination, then assuming- I'm not at all accepting that societal values make it outside, but if they were, they cannot trump non discriminatory principles.

Singhvi: Yes! Second, broadly see what the government is saying. Stand one- cultural ethos. Stand two, which I'm very strongly supporting, marriage is a vital institution.

CJI DY Chandrachud: So you're saying that the SMA was intended to be agnostic to faith. So by reading it as agnostic to sexual orientation, you are not making a leap of faith.

Singhvi: The SMA is a non religious marriage related legislation. This addresses the point of the respondent which is "cultural understanding of marriage as a union". Cultural understanding of marriage was not the basis of SMA.

Adv Karuna Nundy: Under the Transgender Act, Kinnars, Aravanis, Hijras, Jogtis are recognised as a separate class.

Counsel: Similarly, in my petition, @PadmashaliAkkai- she is a well known trans activist. At the age of 15, she was thrown out of her own house. She had to drop out of school, she was on the streets, and thereafter she came back mainstream.

These are the lives they've led. And to say that this is an elitist concern is wrong.

Sr Adv KV Vishwanathan: My client is transgender, was disowned by the family, begged on the streets, and today she is director in KPMG- all by herself. For her to be branded an "urban elitist" shows absolute lack of grace.