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This Article is From Apr 19, 2023

Same-Sex Marriage Hearing Highlights: Supreme Court Hears Requests Over Same-Sex Marriage

Highlights: The centre has termed requests to legally recognise same-sex marriages as "mere urban elitist views for social acceptance".

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India News NDTV News Desk

Updated : April 19, 2023 12:12 am IST

New Delhi:

The Supreme Court begins hearing a batch of requests seeking legal recognition of same-sex marriages, a day after the government reiterated its opposition to any such legal move. Arguing against legal sanction to gay marriages, the centre yesterday termed such requests as "mere urban elitist views for social acceptance".

A five-judge Constitution bench of the Supreme Court comprising Chief Justice of India DY Chandrachud, and Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, is set to hear the petitions today.

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Here are the Highlights on Same-Sex Marriage Case:

Apr 18, 2023 15:24 (IST)

"No Absolute Concept Of Man, Woman": Supreme Court In Gay Marriage Hearing
The centre again today opposed the Supreme Court hearing of requests seeking legal sanction to same-sex marriages, stating that only the Parliament can decide on the creation of a new social relationship.

Apr 18, 2023 15:24 (IST)

"No Absolute Concept Of Man, Woman": Supreme Court In Gay Marriage Hearing
The centre again today opposed the Supreme Court hearing of requests seeking legal sanction to same-sex marriages, stating that only the Parliament can decide on the creation of a new social relationship.

Apr 18, 2023 14:56 (IST)

Senior Advocate Mukul Rohatgi takes the bench through a series of judgments

If you do not have full enjoyment of life you will not have dignity. we are facing the disdain of majority..what about the stigma in place...

We should not be discriminated because LGBTQ is 10,000 and the majority is 10 crores. that is the core of our submission. other side says we are not equals as if we are in 1920s or 1930s and that we have to be happy with just the 377 judgment.

377 means live the way you want to live in your house but if you come out then face disdain of majority... the decision of the court has the same weight as that of the parliament.

Apr 18, 2023 14:35 (IST)

Chief Justice DY Chandrachud: Justice Kaul is also on the electronic mode

Advocate Arundhati Katju mentions that the bench is perusing almost 25,000 pages on the electronic format

Justice Sanjay Kishan Kaul: CJI Chandrachud is ensuring I learn all this before I demit office

Chief Justice DY Chandrachud: My brother has been a real sport and has learnt all this last evening

Justice Sanjay Kishan Kaul: On a lighter note this does not have the pleasure of throwing the files down

Apr 18, 2023 14:29 (IST)

Senior Advocate Mukul Rohatgi: Secularism was held to be a part of the basic structure in SR Bommai case..Para 1 of TMA Pai... 11 judge bench was headed by the then CJI BN Kirpal and he noted India is the land of diversity.... all of this means that people who constitute the unity of nation must move together

Chief Justice DY Chandrachud: In Ayodhya also we did it. we held that the 1993 act was also a part of the basic structure.

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Apr 18, 2023 14:25 (IST)

Chief Justice DY Chandrachud: They are two words in the preamble "and to secure to all of its citizens" and "to promote among them all" which have not been dealt much.. first is individual based and the latter is on the society

Senior Advocate Mukul Rohatgi: Pluralistic society understands diversity and that was the concept

Chief Justice DY Chandrachud: Justice to each of us, liberty to each of us, equality to each of us and fraternity to all of us

Justice PS Narasimha: Here that means dignity is connected to individual and it connects unity to all of them this is important

Solicitor General Tushar Mehta: Unconnected to the case but artificial intelligence has recorded Mr Rohatgi's submission as Mr Singhvi's

Senior Advocate Mukul Rohatgi: please correct it else I will get more briefs

Justice Kaul: I do not think either of you would want more briefs

Senior Advocate Mukul Rohatgi: When Hindu window remarriage was allowed even then society did not accept it..sometimes parliament acts with less alacrity or more alacrity.. here we have moved ahead... the only stumbling block was 377 and then the mind set.. 377 is gone and rest all that is being argued here is the mindset and that is why the other side has called this an urban elitist concept.

After Navtej we have seen how people from our community is perceived.. stigma is still there... I read an article...

Chief Justice DY Chandrachud: Mr Vivek Katju in Indian Express?

Senior Advocate Mukul Rohatgi: Yes i have read. I will pass it on to the bench

Apr 18, 2023 14:17 (IST)

Senior Advocate Mukul Rohatgi: We have a fundamental right to get married, have it registered like our heterogenous brethren of our society..if we are correct then rights flow from that status of marriage.. like income tax provisions, etc apart from status of society

I was amazed to hear that we are not equals and we need to be equal to stigmatised lot and that is why court should step in and that is why even after 377 judgment we are here.. that is why a state is telling us here that we are not equals

It is being said how are we equal. Well we became equal in 1950s. please see the preamble. Article 14, 15, 19, 21 flow or are adjuncts of the preamble...

Justice, liberty, equality will promote fraternity which promotes brotherhood assuring dignity of an individual and this dignity sits in article 21 after the Puttuswamy judgment

Apr 18, 2023 14:15 (IST)

The post lunch session of the Constitution Bench hearing in Sam sex marriage case begins

Apr 18, 2023 13:20 (IST)

Kapil Sibal for Jamiat ulema i Hind: we believe in the autonomy of an individual... and we need to celebrate the union of two people.. so now if marriage is allowed.. it can be allowed.. but now if marriage breaks who will take care of the child.. who will be the father... who will be mother for CPC... in international examples they reform all other laws to accomodate it, I am all for same sex marriage but not in this fashion. If this is not done as a whole then let it not be done at all

Chief Justice DY Chandrachud: We would like you to assist us in the later part of the hearing as an officer of the court Mr Sibal

Kapil Sibal: yes milord. there will be ghettoization also if it is heard piecemeal

Chief Justice DY Chandrachud: We will come back after lunch and hear Mr Rohatgi

Bench rises

Bench to resume hearing post 2 pm

Apr 18, 2023 13:17 (IST)

Chief Justice DY Chandrachud: Both Justice Kaul and I have engaged with the Department relating to parliamentary committees. I chair the e-committee. Justice Kaul chairs NALSA.

Solicitor General Tushar Mehta: There are certain issues which are better left to parliament.

Chief Justice DY Chandrachud: You're underestimating the impact that your argument is having on us. Don't underestimate the impact. It's now our turn to put these questions to Mr Rohatgi.

Solicitor General Tushar Mehta: Today your lordships may not go into personal law but the window of personal law will open.

Chief Justice DY Chandrachud: That's a task for the future generations. The legislative and courts will decide it later.

Solicitor General Tushar Mehta: Entry 5, concurrent law is agnostic. It's the law of marriage. It's not Hindu, Muslim or Parsi. So I'm reiterating that my preliminary objection be taken first and you may issue notice to states.

Chief Justice DY Chandrachud: We'll reflect on this lunch.

Apr 18, 2023 13:09 (IST)

Solicitor General Tushar Mehta: If the notion is treated to be a guiding factor to decide a man or a woman, I'll show several acts which your lordships would unintentionally make non workable.

If I have genitals of a man but otherwise am a woman, as being suggested, how will I be treated under CrPC? As a woman? Can I be called for 160 statement? There are several issues.

This would be better if gone into by the parliament. The parliament has eminent parliamentarians. Parliamentary committees are not acting in the way we see parliament function. Committees have all parties as members.

Apr 18, 2023 13:06 (IST)

Solicitor General Tushar Mehta: My submission is that even Special Marriage Act- the legislative intent throughout has been relationship between a biological male and a biological female.

Chief Justice DY Chandrachud: The very notion of a biological man is absolute which is inherent.

Solicitor General Tushar Mehta: Biological man means biological man, there is no notion.

Chief Justice DY Chandrachud: There is no absolute concept of a man or an absolute concept of a woman at all.

It's not the question of what your genitals are. It's far more complex, that's the point. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals.

Biological man means man with biological genitals. I didn't want to use that phrase.

Apr 18, 2023 13:04 (IST)

Solicitor General Tushar Mehta: Your lordships will have Hindus, Muslims- everyone will be affected. Therefore the central government very respectfully prays that states will have to be heard.

Justice Kaul: We don't want to touch personal laws right now. Confine to what we're discussing.

Justice Ravindra Bhat: If the remit is being defined in this manner...

Solicitor General Tushar Mehta: One Mr A is Hindu. He wants to continue as a Hindu and wants to marry under HMA...

Justice Kaul: We're not referring to that...

Solicitor General Tushar Mehta: I'm begging to be heard.

Justice Kaul: We've said we don't want to get into the wider question. We're only deciding the A issue today. We can't be compelled to hear everything.

Solicitor General Tushar Mehta: Several windows have opened. On the lighter side, several windows have already opened and now they're trying to open the door. I'm saying that you'll have to ultimately open your entire house.

Chief Justice DY Chandrachud: Those windows will open up whatever we decide.

Solicitor General Tushar Mehta: Acceptance of societal relationships is never dependent on judgements of legislations. It comes only from within.

Apr 18, 2023 13:02 (IST)

Senior Advocate Abhishek Manu Singhvi: The notice issue in Special Marriage Act shall be struck down.

Chief Justice DY Chandrachud: The notice issue exists in heterosexual marriages too.

Senior Advocate Abhishek Manu Singhvi: Yes and Sections 5-10 have the opposite effect than intended.

Justice Kaul: You say you don't want to touch personal law. Then the argument is limited. So can we in Special Marriage Act, read "person" and leave everything else for a better time?

Senior Advocate Geeta Luthra: We have challenged in addition other two secular legislations, many of us have- the Foreign Marriage Act and the Citizenship Act.

Advocate Luthra: With regards to the Citizenship act, the word "spouse" has been used in 2015 subsequent to all these legislations. So all that is required is that spouse means spouse

Advocate Vrinda Grover: The petitioners before you are not necessarily same sex. In fact in my petition, there are petitioners who have anonymized themselves because they're coming from oppressed castes and communities. They're trans persons...

Solicitor General Tushar Mehta: First, the question we're misdirecting it. The question is not right of equality, dignity, or privacy of LGBTQ members. The question is right of conferring of a social legal status and whether that can be done by judicial adjudication.

There was no law governing rights of LGBT community. Then NALSA and Johar came. Please see the transgender act. Most of arguments are covered. There is no legal lacuna, there is a statutory framework, and a conscious omission by statute.

Solicitor General Tushar Mehta: This is the 2019 Act, after Navtej Johar. Please see- Sec 2- defines family, inclusive education, institution, transgender persons...

Now see prohibition against discrimination. They're saying we have unfair treatment etc. Transgender here means LGBTQ+, not transgenders as we colloquially understand.

These are all criminal offences- if they're denied any rights. There is also recognition of identity of transgender persons- right to dignity, right to personhood- it's all here.

Whether we like it or not, whether they give it up or not, whether the court goes into or not- it necessarily affects personal laws. Hindu marriage act is codified personal law. Islam has personal law too.

Justice Kaul: We're not getting into the personal laws.

Solicitor General Tushar Mehta: That's not the point. Somebody who is not Hindu can come here and say why did you not give me the same treatment, I want to be Hindu, I want to marry under HMA...

Chief Justice DY Chandrachud: We're not getting into it.

Apr 18, 2023 12:44 (IST)

Senior Advocate Abhishek Manu Singhvi: On canvas, allow me to say something.

There are two crucial words here- marriage and persons. Same sex is a slight misnomer. The correct word is persons.

There is two categories of consequences- one is the minor or major secular consequence of marriage. In the event your lordships hold marriage to be this way or that way, not creating an empty shelf, it has to have consequential benefits.

Your lordships may need to travel a little ahead. These are secular incidents of daily life, as my learned friend said. They involve nothing beyond that. Now there are larger issues which you may leave open. I say even those can be covered by marriage.

Adoption according to me is crucial. But your lordships will guard against holding against left hand that marriage of same sex persons is valid. And on the right hand it would be empty.

One is sex based, which must includes between man and woman there is a whole range of combination of persons with special biological features. It's not only man and woman.

The second category is gender- masculine and feminine. So a male body can be imbued by female psychological instincts and vice versa.

There is LGBTQIA++. This "++" has a whole spectrum of hues and colours. Now if your lordships were to hold same person marriage, your lordships doesn't mean to limit to same sex. So the correct formulation should be "2 consenting adults along bodily gender and sex spectrum

All of this can be started by Special Marriage Act. We're not arguing personal laws at all. Then about state intervention - Your lordships for the first batch is interpreting Special Marriage Act.

Apr 18, 2023 12:29 (IST)

Senior Advocate Menaka Guruswamy: In this evolving consensus, court is also playing a dialogical role to create that consensus and move towards an equal future.

Marriage is not only a question of dignity. It is also a bouquet of rights that LGBTQ people are being denied post Johar. Bank account, life insurance, medical insurance- I cannot buy SCBA medical insurance.

This is the reality of how rights are exercised. Rights are exercised when you're able to protect your relationships. One facet of that right is the constitutional value of dignity, equality, fraternity. The other facet is the day-to-day business of life.

When we look at law in India, most rights flow from this notion of blood relationships, i.e., either being born into a family or being married. That is the problem.

If it is short of full marriage, it will mean that subsequently, not just Mr Rohatgi, but Mr Kirpal, me, we will keep coming back to court to litigate individual issues of discrimination.

I am not able to nominate my partner for life insurance. These are not theoretical issues. This is our life.

This is why we say marriage. Because that is the notion that the legal framework which is premised on common law understands and takes within its fold.

So anything short - if it is a civil union, this correspondence will now start with insurance company, with banks, with hospitals, with wills, with estate duties, with anything that is pre requisite to be able to live a life outside a home, including buying that home.

Apr 18, 2023 12:26 (IST)

Justice Sanjay Kishan Kaul: Sometimes incremental changes in issues of societal ramifications are better. There is time for everything. Therefore what was being suggested was- can we, for the time being, confine it only to limited issue, don't step into personal law issues.

Chief Justice DY Chandrachud: You can assist on how we can develop the notion of a civil union which finds recognition in our statute - the Special Marriage Act?

Between Navtej and today, our society has found much greater acceptance of same sex couples. That's very positive because you find that there is a greater acceptance in our Universities.

In this evolving consensus, court is also playing a dialogical role to create that consensus and move towards an equal future.

Apr 18, 2023 12:21 (IST)

Chief Justice DY Chandrachud: There may be some amount of sage wisdom in also going about our tasks in incremental manner. Because otherwise do we then confine ourselves only to Hindu Marriage Act? What about the Parsis, Jews, Muslims- there are a lot of communities

The constitution itself and the law itself is evolving so the court has to be mindful that we're moving by process of interpretation.

Perhaps, going incrementally, covering a canvas for the present, confine yourself to this canvas and then allow parliament's perception to evolve with time. Because parliament is also responding to the evolution of society

We can't deny the fact that there is undoubtedly the legislative element also involved.

Apr 18, 2023 12:20 (IST)

Senior Advocate Menaka Guruswamy: There are some concerns about Hindu Marriage Act.

The Hindu Marriage Act is not an issue necessarily of personal law. It is a statutory law. We will demonstrate that. The terms of the constitution, the reforms have always be in statutory law.

The origin of Hindu Marriage Act, the Hindu code, did something that was not committed in sacramental Hindu Law, which is, inter caste marriage, Sagothra marriage, inheritance...

Apr 18, 2023 11:57 (IST)

Chief Justice DY Chandrachud

We also have to see this. (Refers to a chart)- If you see the US, Sept 1996, federal govt enacts the defence of marriage act which says federal law shall not recognise same sex marriage.

Then comes 2013, Windsor and then 2013 in the UK, the Act conferring upon same sex couples right to marry. And then 2022, US Respect for marriage act.

What we therefore have to consider is that these matters- even in the US, UK, the legislature has intervened- earlier by outlawing and later by recognising.

In the absence of legislation, how does the court go about it? Is there any indication in our legislation or legislative space where court can act?

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