Same-sex marriage hearing Updates: 'Cisgender not transgender', SG corrected

Same-sex marriage hearing Updates: The top court is hearing arguments on day 6 on pleas seeking marriage equality.

Members and allies of the lesbian, gay, bisexual, transgender (LGBT) community take part in Delhi Queer Pride. (HT_PHOTO/ File)

Same-sex marriage SC hearing Updates: The Supreme Court on Thursday heard Centre's arguments on non-heterosexual unions. ...Read More

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• 27 Apr 2023, 03:49:12 PM IST

  Bench rises for the day

  The bench has risen for the day. The arguments will resume on Wednesday, May 3, 2023.

• 27 Apr 2023, 03:48:21 PM IST

  SG Mehta: There is no treaty obligation argument permissible

  SG Mehta: There is no treaty obligation argument permissible. Please see judgement on this.

• 27 Apr 2023, 03:45:29 PM IST

  SG Mehta: Judicial pronouncements of other countries cannot be relied

  SG Mehta: Judicial pronouncements of other countries cannot be relied upon because cultural social ethos, jurisprudence is different of all nations.

• 27 Apr 2023, 03:44:54 PM IST

  Article 19- Freedom of love, expression, doesn't mean institutionally recognised form

  SG Mehta: Let's see what the view of our court is. Please see. Article 19- Freedom of love, expression, doesn't mean institutionally recognised form. A friendship is an expression.

• 27 Apr 2023, 03:44:23 PM IST

  SG Mehta: This movement started 20-30 years ago

  SG Mehta: This movement started 20-30 years ago. We don't have any data. The first or second generation is here. So what is the effect on children, very few may have adopted - there is no reliable data.

• 27 Apr 2023, 03:43:52 PM IST

  SG Mehta reads a judgment on whether courts can adjudicate upon the issue or it should be left to the legislature

  SG Mehta reads a judgment on whether courts can adjudicate upon the issue or it should be left to the legislature.

• 27 Apr 2023, 03:41:32 PM IST

  CJI DY Chandrachud: L or G category persons of LGBTQ are very badly stigmatised

  SG Mehta: Persons in L or G category of LGBTQ, they're not stigmatised or getting problems.

  CJI DY Chandrachud: They're very badly stigmatised. In fact the parliamentary debate on the 1954 Act shows that there was a considerable degree of stigma attached.

• 27 Apr 2023, 03:40:37 PM IST

  SG Mehta refers to provisions of the Transgender Act

  SG Mehta refers to provisions of the Transgender Act.

  Justice Kaul: If really the concerns of the gay and lesbian community had to be addressed, possibly a legislation specific to that and that has come for transgenders would have addressed issue

• 27 Apr 2023, 03:38:18 PM IST

  CJI DY Chandrachud: Cis gender is a gender you're born with

  CJI DY Chandrachud: Cis gender is a gender you're born with. Now, there may be some variations but as a principle- lesbians belong to the cis gender category because there is no reassignment or assuming a different gender later.

• 27 Apr 2023, 03:38:04 PM IST

  SG Mehta reads definition of gender queer

  SG Mehta (reads definition of gender queer): Anything outside male female or having a different feeling of what is assigned - that's what I've read. I may be right or wrong.

• 27 Apr 2023, 03:36:02 PM IST

  Gays and lesbians are completely different: CJI

  CJI DY Chandrachud: You may be correct in saying that the definition of transgender persons covers the entire spectrum but gays and lesbians are completely different.

• 27 Apr 2023, 03:35:22 PM IST

   A cis gender person cannot be a transgender person: Sr Adv Saurabh Kirpal

  Sr Adv Saurabh Kirpal: This is not correct Mr Solicitor. A cis gender person cannot be a transgender person.

• 27 Apr 2023, 03:34:43 PM IST

  CJI: Everyone who is an L or a G- lesbians and gays- they're not transgenders

  CJI DY Chandrachud: But, Mr Solicitor, everyone who is an L or a G- lesbians and gays- they're not transgenders.

  SG Mehta: They would be gender queer.

  CJI DY Chandrachud: No, no.

• 27 Apr 2023, 03:34:04 PM IST

  Gender queer and persons with intersex variations include all categories: SG

  SG Mehta: Every other spectrum is included. Gender queer and persons with intersex variations include all categories.

• 27 Apr 2023, 03:33:41 PM IST

  SG Mehta: It includes persons with trans man, trans woman, persons with intersex variations

  SG Mehta: It includes persons with trans man, trans woman, persons with intersex variations, gender queer, persons having socio-cultural identity such as kinnar, Hijras etc

• 27 Apr 2023, 03:32:37 PM IST

  The act covers all spectrums & shades: SG Mehta

  SG Mehta: If I show your lordships broadly the scheme of this act- first, transgenders (persons) the way in which we understand in colloquial parlance which is equivalent to eunuchs. That's not the way it's defined. See the act,it covers all spectrums & shades.

• 27 Apr 2023, 03:28:48 PM IST

  SG Mehta: Marriage also in heterosexual couples ideally shouldn't have been regulated

  SG Mehta: So marriage also in heterosexual couples ideally shouldn't have been regulated. But society felt that you can't permit people to marry at any age, many times etc

• 27 Apr 2023, 03:27:07 PM IST

  SG Mehta: State should be very slow in recognising a relationship

  SG Mehta: State should be very slow in recognising a relationship because state is entering an arena of socio-personal relationship. It can recognise only when legitimate state interest recognises that regulation is necessary.

• 27 Apr 2023, 03:25:09 PM IST

  No positive obligation on state to recognise all personal relationships: SG Mehta

  SG Mehta: Petitioner wants a new class to be created for a new object. That was never conceived. There is no positive obligation on state to recognise all personal relationships.

• 27 Apr 2023, 03:23:22 PM IST

  SG Mehta: SMA is only for heterosexuals

  SG Mehta: SMA is only for heterosexuals. That's what the language and the debates also show.

• 27 Apr 2023, 03:22:57 PM IST

  Government has made mechanisms for different classes though they're same: SG

  SG Mehta: Continuing my argument, on Article 14 I say that it applies when government has made mechanisms for different classes though they're same- that is not the case here.

• 27 Apr 2023, 03:21:52 PM IST

   My stand on this will not be adversarial: SG Mehta

  SG Mehta: Whatever administrately can be done can be seen. My stand on this will not be adversarial.

  CJI DY Chandrachud: We will meet on Wednesday so you have that time to come back to us on this.

• 27 Apr 2023, 03:21:11 PM IST

  SG Mehta: I make it clear that i will assist the court qua

  SG Mehta: I make it clear that i will assist the court qua, so far as possible and legally permissible, removal of the barriers without any legal or statutory recognition.

• 27 Apr 2023, 03:19:32 PM IST

  Problems are bound to arise: Justice Kaul

  SG Mehta: That can continue. There is no prohibition.

  Justice Kaul: Live in relationship was also in that category. Some obligations follow. Similarly, problems are bound to arise here. So bank accounts, adoption- is an aspect where i thought govt maybe have thought about it

• 27 Apr 2023, 03:18:54 PM IST

  Justice Kaul: Decriminalisation recognised the existence of the relationship

  SG Mehta: Yes yes. Your lordships decriminalisation would not be understood as a recognition of any status.

  Justice Kaul: It recognised the existence of the relationship, of the situation - it said it's no longer criminalised

• 27 Apr 2023, 03:16:13 PM IST

  CJI DY Chandrachud: We request you to assist us on this in a non adversarial manner

  CJI DY Chandrachud: We request you to assist us on this in a non adversarial manner.

• 27 Apr 2023, 03:15:42 PM IST

  Justice Kaul: Let us not transport the Victorian philosophy as our original civilisation philosophy

  Justice Kaul: Let us not transport the Victorian philosophy as our original civilisation philosophy. So you may check up if any thought process has been worked out in ministries in last 5 years.

• 27 Apr 2023, 03:15:11 PM IST

  Justice Kaul: Different social ministries would have gone into a study how to tackle these other problems

  Justice Kaul: With the decriminalisation which took place, obviously this was indirectly recognition that such a status can prevail. Once such status can prevail, logically different social ministries would have gone into a study how to tackle these other problems arising of this

• 27 Apr 2023, 03:12:39 PM IST

  What does the government want to do to ensure, asks CJI

  CJI DY Chandrachud: In that sense we're not going to marriage at all. The reason why we're trying to push you to this is because we take your point that court's remit is not to legislate. But short of that, our law has gone so far. What does the government want to do to ensure ….that these cohabitation relationships, they must be recognised to ensure security, social welfare. And then these relationships will cease to be ostracized.

• 27 Apr 2023, 03:12:01 PM IST

  CJI DY Chandrachud: The old privy council principle - long cohabitation itself is a presumption of marriage

  CJI DY Chandrachud: The old privy council principle - long cohabitation itself is a presumption of marriage. Why? In our parental times, where were the marriage certificates, registrations.

• 27 Apr 2023, 03:11:27 PM IST

  Justice Bhat: Recognition must be something which gives them benefits

  Justice Narasimha: When we say recognition, it may not always be recognition of marriage.

  Justice Bhat: Recognition must be something which gives them benefits.

• 27 Apr 2023, 03:08:45 PM IST

  Justice Bhat: Legislation has gone this far as to recognise live in relationships- right to residence

  Justice Bhat: Legislation has gone this far as to recognise live in relationships- right to residence. So there can be situations where a person in live in relationship may get the same house. There is a recognition.

• 27 Apr 2023, 03:07:06 PM IST

  This case links adoption, maintenance, succession: CJI

  CJI Chandrachud: This case is much more difficult for us. These have linkages everywhere - adoption, maintenance, succession.

• 27 Apr 2023, 03:06:21 PM IST

  Collaboration has been happening: Justice Bhat

  Justice Bhat: Domestic Violence Act was also enacted because of some movement. Then came the Transgender Act. So collaboration has been happening.

• 27 Apr 2023, 03:05:45 PM IST

  CJI, Justice Bhat on progress in laws

  CJI DY Chandrachud: Despite the government's affidavit, we have a law such as the Transgender Act. Look at the vision of that legislation.

  Justice Bhat: We had a vishakha - it was limited to its application to public sectors. Then it got assimilated and it's a wider act now.

• 27 Apr 2023, 03:04:10 PM IST

  We have progressed and decriminalized same-sex relationship: Justice Bhat

  Justice Bhat: This means that society by and large was where it stood- it accepted the things as they were. Now we have progressed and decriminalized it so now there is some kind of identity. So how do you handle that?

• 27 Apr 2023, 03:03:12 PM IST

  There has been no prohibition for this marriage, inlike other countries: Justice Bhat

  Justice Bhat: Look at it from another angle. You've shown us the international scene. Unlike in other countries, there has been no prohibition for this marriage. In that sense, except 377, we didn't have any law.

• 27 Apr 2023, 03:02:07 PM IST

  We're pushing the government on socio economic matters: CJI

  CJI DY Chandrachud: The relationship of the court and the government is not really an adversarial relationship. We're pushing the government on socio economic matters. We may not have a model within us and it may not be appropriate for us to devise that model

• 27 Apr 2023, 03:01:32 PM IST

  The profound nature of our culture helped our religion to survive after foreign invasions: CJI

  CJI DY Chandrachud: It is possibly one of the reasons why our religion survived even foreign invasions- the profound nature of our culture. There are so many issues in which your ministries can on the administrative side find solutions. Maybe we can act as facilitators.

• 27 Apr 2023, 03:00:09 PM IST

  CJI: Our temples' architecture show the depth of our culture

  CJI DY Chandrachud: You go to our finest temples and if you look at the architect, you will never say it is lewd. It shows the depth of our culture.

• 27 Apr 2023, 02:59:16 PM IST

  It was the impact of British Victorian morality: CJI

  SG Mehta: This orientation has been there since time immemorial. But this movement started in 2002.

  CJI DY Chandrachud: It's the other way round. It was the impact of British Victorian morality that we had to foresake much of our cultural ethos.

• 27 Apr 2023, 02:58:04 PM IST

  SC asks Centre to respond on the social benefits that same sex couples can be granted on May 3

  SC asks Centre to come back on May 3 with its response on the social benefits that same sex couples can be granted even without legal recognition of their marital status

• 27 Apr 2023, 02:56:43 PM IST

  There are studies which show that a single parent child is better: SG Mehta

  SG Mehta: What I'm submitting is hypothetical- that there are studies which show that a single parent child is better than child who doesn't see mother and father both.

• 27 Apr 2023, 02:55:48 PM IST

  SG Mehta: This is more of a sociological problem- the rearing, development of a child.

  SG Mehta: This is more of a sociological problem- the rearing, development of a child. These are all hypothetical situations.

  CJI DY Chandrachud: They're real life situations.

  Justice Bhat: They're not hypothetical.

• 27 Apr 2023, 02:53:41 PM IST

  Both children have to be of both parents: Juctice Bhat

  SG Mehta: If one can, why not two? I understand the concern.

  Justice Bhat: If there are two, both have to be recognised. It can't be that one relates to one and other relates to other. So both children have to be of both parents.

• 27 Apr 2023, 02:52:57 PM IST

  We don't have to go for an all out approach: CJI

  CJI DY Chandrachud: And you don't have to go as far as marriage in this as well. We don't have to go for an all out approach, atleast at this stage of the development of our social ethos. Should that child not have the benefit of the cohabitation of people whose home he resides?

• 27 Apr 2023, 02:50:27 PM IST

  CJI: One of the couples in a same sex relationship can adopt- no bar at all

  CJI DY Chandrachud: Second, one of the couples in a same sex relationship can adopt- no bar at all, it is lawful. So in such a situation, a child goes to school, does the government want a situation where the child is treated as a single parent child?

• 27 Apr 2023, 02:48:57 PM IST

  CJI DY Chandrachud: We want some element of a broad sense of coalition

  CJI DY Chandrachud: We want some element of a broad sense of coalition. Because we're also conscious about the fact that there is so much that representative democracy should also achieve in our country.

• 27 Apr 2023, 02:48:38 PM IST

  Association also means exclusion: Justice Bhat

  Justice Bhat: So what you're saying in essence is- they have a right to associate themselves. In that sense, association also means exclusion- in that relationship there is no other person.

• 27 Apr 2023, 02:47:57 PM IST

  Issues can be addressed on the government's side: SG

  SG Mehta: If there are other issues or concerns, they can be addressed on the government's side.