Same-sex marriage updates: Don't cite US abortion ruling, we are far beyond it, says CJI

Court defers the orders to April 28.

SG Tushar Mehta: Your Lordship is right, till '56, it was neither permissive nor prohibitive. Maybe uncodified Shastric law would apply...May have its repercussions.

Bhat J: At the time, were there any laws anywhere in the world allowing same-sex marriage?

SG Tushar Mehta: Not to our knowledge...but no prohibition.

Bhat J: In England, there was prohibition till '73.

Judges look into how other nations came to recognise same-sex marriage

SG: In SMA there has been a conscious omission of the same sex marriage case.

(Refers to the constituent assembly debates during the passage of the Special marriage act... )

SG Tushar Mehta: People not agreeing to conditions were free to marry under religious law...That is personal uncodified law...does not prohibit LGBTQIA+ marriages, except...

(Discusses with junior) Yes, HMA prohibits...

SG Tushar Mehta: Parliament was aware of lesbian and gay people. Select committee in fact used the word parties instead of 'man' & 'woman'. After heated debate, amendment was brought to introduce different ages for men & women.

SG Tushar Mehta takes court through debates on Special Marriage Act on the floor of the House.

CJI DY Chandrachud: SMA was intended to be religion-neutral, idea was to create a forum for people to marry outside their faith.

SG: In South Africa, the only country, the process was first initiated by the judiciary. Out of 34, 29 countries legislature stepped in... Bolivia is by judiciary...

CJI: Look at Latvia...

SG: yes judiciary first... but here same sex couples can register their marriage through the courts.

CJI: some countries have followed the doctrine that you judiciary gives three months to enact a law and if no law then judgment will hold..

SG: Latvia did so.. but this court has never done so..it depends on the constitutional culture

CJI Chandrachud tells Mehta, "If you are relying on Dobbs to argue judicial restraint, then in India, we have gone far beyond that."

"Dobbs represents a view of the American SC that a woman has no control over her bodily integrity. This theory has been debunked long back in our country."

Bench discusses Ghaidan v Godin-Mendoza (landmark UK gay rights judgement arising out of tenancy suit)

"Ghaidan also does not apply to Indian context. South Africa is only country where process initiated by judiciary."

SG Mehta: In Taiwan, act was followed by executive action & judgement.

Bhat J: In Austria, act followed judgement.

SG: There was a prohibition under challenge.

SG Mehta: Wherever legislature has stepped in, they have correspondingly amended other statutes. But, note that none of the various statutes that would be affected have been challenged here. So court cannot do what Parliament can.

SG Mehta: Not supporting judgement on abortion rights, don't agree with it either. It's about returning power to people. Only saying that this must be decided by Parliament.

SG Mehta: Social implications, return it to Parliament to decide.

CJI DYChandrachud: Going by this, we will have to reconsider entire line of judgement from Maneka Gandhi.

SG Mehta: For millions of years, marriage has been recognised by religions as union between heterosexual persons. This has subsequently been codified in statute...procreation major purpose. (Reads from submission)

Even the prayers of the petitioners are extremely vague. Societal acceptance is needed for recognition of an union and this has to be through the parliament. and if it is done by the court then it is detrimental to the LGBTQI since you are forcing something against the will of the people. We cannot forget the historical background which led to the institution of marriage.

SG: For other religions by and large it remains uncodified. The social status which marriage gets I am on ... The moment any right which was pre existing without recognition is recognised, it gets regulated. Law prescribes when to marry, autonomy goes.

SG: there are several shades of the spectrum...it is not just gays, lesbians etc..

“There is no absolute right to marry. Law prescribes when to marry by prescribing age. Law prescribes who not to marry, how to separate is also legislatively regulated,” said SGMehta.

Mehta argues that Parliament has defined transgender persons very widely to include "all shades and all spectrum of what we call LGBTQ+".

Solicitor General: Right to marry can't mean compelling the State to create a new definition of marriage. Parliament can do but it's not an absolute right. My appeal is to rather than taking this any further, this is a subject that should be left to the choice of parliament.

Centre begins its submissions in the same-sex marriage case, saying the issue should be left to parliament, considering the complexity of the issue & the social ramifications the subject has.

Petitioners have concluded their arguments in the same sex marriage case. Solicitor General Tushar Mehta to begin submissions after 2 pm. 

Sr Adv Jaideep Gupta, appearing for intervenor Queer Collective of Indian Institute of Science, begins his submissions.

First, difference in marriageable age should not come in the way. Child Marriage Bill already tabled: Gupta

Second, persons of this sexual orientation are being forced into heterosexual marriages. What is worse, there are people who are suggesting conversion therapy...Like this can be medically ‘corrected’, he added.