Same-sex marriage updates: Don't cite US abortion ruling, we are far beyond it, says CJI
Same-sex marriage SC hearing Updates: The Supreme Court on Wednesday entered into day 5 of its hearing on a bunch of at least 15 petitions regarding the demand for marriage equality in India. The Centre requested the top court to consider leaving questions raised in the pleas seeking legal sanction for same sex marriages to Parliament....Read More
Appearing for the Centre, Solicitor General Tushar Mehta told a five-judge constitution bench headed by Chief Justice D Y Chandrachud that the apex court is dealing with a "very complex subject", which has a "profound social impact".
Court defers the orders to April 28
Court defers the orders to April 28.
SG Tushar Mehta: Your Lordship is right, till '56, it was neither permissive nor prohibitive
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?
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
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
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
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: Parliament was aware of lesbian and gay people
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 takes court through debates on Special Marriage Act on the floor of the House
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 process was first initiated by the judiciary
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: 'Don't cite Dobbs v Jackson . We have gone way beyond that
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)
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."
Discussion on how marriage equality was granted in various countries
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
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
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
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.
Mehta: Religions have always recognised heterosexual marriages
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)
SG: Even prayers of the petitioners are extremely vague
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 gives history of Hindu Marriage Act
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
SG: there are several shades of the spectrum...it is not just gays, lesbians etc..
Right to marry is not absolute, says Solicitor General
“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 says Parliament defined transgender persons very widely
Mehta argues that Parliament has defined transgender persons very widely to include "all shades and all spectrum of what we call LGBTQ+".
Right to marry doesn't mean compelling state to create new definition of marriage
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.
Issue is complex, should be left to Parliament: Solicitor General Mehta
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.
Solicitor General Tushar Mehta to begin submissions shortly
Petitioners have concluded their arguments in the same sex marriage case. Solicitor General Tushar Mehta to begin submissions after 2 pm.
Transgenders are being forced into heterosexual marriages: Adv Gupta
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.
Adv Shivam says Centre using innateness as an opportunity to discriminate is unconstitutional
Adv Shivam Singh argues about innateness, and how centre using it as an opportunity to discriminate is unconstitutional.
"To discriminate on basis of this parameter does not pass constitutional muster. These cannot be changed."
Exclusion of same gender couples and transgender persons defeats very purpose of adoption: Adv Chakravorty
“Children, orphans...have right to have a family. Exclusion of same gender couples & transgender persons defeats very purpose of adoption which is to provide a stable, loving family,” said adv Chakravorty.
“Is it in the best interest of the child to not have a relationship with their second parent? Petitioners are part of historically oppressed minority...deserve as much dignity & protection as opposite sex couple.”
CARA circular even bars queer persons in their individual capacities to adopt: Adv Chakravorty
I will show that CARA circular even bars queer persons in their individual capacities to adopt. They are prevented from adopting because they are in a live-in relationship with their partner: said Adv Chakravorty as reported by Live Law.
‘Let us be blessed just as heterosexual couples, not elite at all’
Adv Nundy said, “Let us be blessed just as heterosexual couples are...Not elite at all. So many people have called me...from Hissar, Chhattisgarh, Surat...Let the union bless us just as they do any other couple.”
‘Union says such (trans) couples would play havoc with personal laws. But…’
“Your Lordships should not presume any difficulty which arises for LGBTQ couples. Union says such couples would play havoc with personal laws. But we are part of our community and our society,” said Adv Nundy.
Petitioners seek positive and negative declarations on Special Marriage Act
Adv Katju: We seek first, a positive declaration that marriage solemnised under SMA and parties to such marriage will be entitled to all rights & obligations, notwithstanding gender identity & sexual orientation.
We also seek a negative declaration binding the state to not deny rights and obligations to married couples whose marriage has been solemnised under SMA, only on ground of sexual orientation or gender identity.
‘We are no different, and we ask for the right to not be different’ says Adv Katju
“LGBTQ couples will come to courts with claims, as these issues (pension, other benefits and obligations that flow from marriage) arise, just as heterosexual couples have, from the time codification of matrimonial laws began. We are no different, and we ask for the right to not be different,” said Adv Katju.
Arundhati Katju begins her argument
Adv Arundhati Katju begins her argument. Notably, her partner and senior advocate Menaka Guruswamy argued for marriage equality yesterday, reported Live Law.
‘If Foreign Marriage Act does not follow Special Marriage Act, such marriages, will not be recognised’
“If FMA does not follow SMA being read gender inclusively, such marriages, that take place abroad, will not be recognised here, even though SMA would grant marriage equality,” argued Advocate Nundy.
Adv Nundy urges usage of words like 'third gender spouse', or ‘non-binary spouse’ for trans marriages
Nundy: 'Third gender spouse', or 'non-binary spouse' may be used.
Bhat J: First you said that you don't want neutral word like 'spouse'.
CJI: Tabulated statement seeks to interpose 'third gender spouse' in relevant provisions.
‘Some trans marriages are already allowed to subsist’
Advocate Nundy argued that there are some trans marriages which are allowed to subsist. But others are not recognised because of a lack of certificate or the timing.
‘Elite argument can be set aside, matter of prejudice’- CJI
Justice Bhat J: If your arguments are built around the forms, you will have to go forward.
Adv Nundy: Elite...
CJI DYChandrachud: Elite argument can be set aside. Matter of prejudice. Does not determine how we rule on a constitutional issue, reported Live Law.
Court can't say will give nothing as can't give everything, petitioners to SC
The petitioners seeking legal sanction for same-sex marriage on Tuesday urged the Supreme Court to recognise their right to marry saying there can't be a situation where the court will say it will give nothing as it can't give everything.
Not granting legal sanction to same-sex marriage would amount to "clear discrimination" on the ground of sexual orientation of a person and this may led to "gay brain-drain" where such persons will be forced to go to other countries for enjoying the fruits of marriage and other consequential benefits, said senior advocate Saurabh Kirpal, himself a gay.
Kirpal, appearing for the petitioners' side, told a five-judge constitution bench headed by Chief Justice D Y Chandrachud that seven per cent of India's GDP will be affected if the LGBTQIA (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) are denied this fundamental right. (PTI)
'Hope to see rainbow marriages…': Parents of LGBTQIA+ children write to CJI
As the Supreme Court hearing for and against the legalisation of marriage for non-heterosexual couples enters a fourth day, Sweekar - The Rainbow Parents - a support group of parents of Indian children who identify as members of the LGBTQIA+ community - wrote to Chief Justice DY Chandrachud Tuesday to 'consider the plea for marriage equality'. The case is being argued in front of the top court's Constitution Bench, which is led by the chief justice.
Sweekar - which says it 'helps navigate our journey to acceptance' - numbers over 400 parents from across the country. In its letter to the chief justice, the group said: "We desire to see our children and our children-in-law find legal acceptance for their relationship under the Special Marriages Act in our country. We are certain that a nation as big as ours, which respects its diversity and stands for the value of inclusion, will open its legal gates of marriage equality to our children too."
Day 5 of non-heterosexual unions hearing will see arguments from the Center
On Day 4 of the non-heterosexual unions hearing, petitioners wrapped up their arguments in the Supreme Court.
Center will be presenting the arguments today.
