2 years ago
New Delhi:
The Supreme Court begins hearing the requests seeking to legalise same-sex marriages, a petition that the Centre is vehemently opposing.
Yesterday, the government stated in court that only the Parliament can decide on the creation of a new social relationship.
The Centre today urged the Supreme Court that all states and Union Territories be made parties to the proceedings on the pleas seeking legal validation for same-sex marriages.
The Supreme Court had last year sought the Centre's response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.
Here are the LIVE updates on the same-sex marriage case:
Senior Advocate Abhishek Manu Singhvi: Special marriage act is a non religious mode of marriage..
Chief Justice DY Chandrachud: So you are saying since special marriage act is agnostic to faith.. making it agnostic to sexual orientation is not a leap of faith..
Chief Justice DY Chandrachud: So you are saying since special marriage act is agnostic to faith.. making it agnostic to sexual orientation is not a leap of faith..
Senior Advocate Abhishek Manu Singhvi: Yes to put it simply
Chief Justice DY Chandrachud: The basis of a classification cannot be conflated with a purpose..
Senior Advocate Abhishek Manu Singhvi cites a judgment regarding evening law classes for candidates... societal values cannot trump non discriminatory principles..
Senior Advocate Abhishek Manu Singhvi cites a judgment regarding evening law classes for candidates... societal values cannot trump non discriminatory principles..
Chief Justice DY Chandrachud: State cannot discriminate against an individual on the basis of a characteristic over which the individual does not have control. When you see it is innate characteristics then it counter urban elitist concept.. urban perhaps because more people are coming out of the closet. Government does not have any data also to show that same sex marriage is an urban elitist concept
Senior Advocate Abhishek Manu Singhvi: I don't marry because i want to get a tax benefit... some people do..
Justice SK Kaul: Some people get separated to get tax benefits.
Justice Hima Kohli: I was about to say this..
Chief Justice DY Chandrachud: 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.
Justice Ravindra Bhat: Say insurance like family insurance etc are subject to regulations... so u have IRDA regulations or there are standard policies... do they use such expressions or are left loose.. i think its open ended.. like nominate even a non family
Senior Advocate Abhishek Manu Singhvi: I am talking about a group insurance...
Justice Ravindra Bhat: Not totally horizontal..
Senior Advocate Menaka Guruswamy: How marriage is defined by the court will impact these changes... RBI does not have a guideline on this
Justice Ravindra Bhat: If you see Justice Ramaswamy judgment then such things can be done even with a direction without us getting into all of this..
Justice SK Kaul: Some people get separated to get tax benefits.
Justice Hima Kohli: I was about to say this..
Chief Justice DY Chandrachud: 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.
Justice Ravindra Bhat: Say insurance like family insurance etc are subject to regulations... so u have IRDA regulations or there are standard policies... do they use such expressions or are left loose.. i think its open ended.. like nominate even a non family
Senior Advocate Abhishek Manu Singhvi: I am talking about a group insurance...
Justice Ravindra Bhat: Not totally horizontal..
Senior Advocate Menaka Guruswamy: How marriage is defined by the court will impact these changes... RBI does not have a guideline on this
Justice Ravindra Bhat: If you see Justice Ramaswamy judgment then such things can be done even with a direction without us getting into all of this..
Senior Advocate Abhishek Manu Singhvi: These are the three constitutional facets which are being practiced on the ascriptive front.. if there is a violation of dignity etc it is based on ascriptive feature like race, caste, national origin.. here it will be sex or sexual orientation..here it will be implied exclusion of LGBTQ class from SMA is only on the basis of sex and sexual ortientation.. so the conceptual point is implied exclusion of LGBGT class is based on sole ascriptive characteristic
When union of India in various places of the counter.. it says social, culturally ingrained for the marriage... it forgets that Special marriage act was created as an alternative to the socially culturally ingrained form of marriages or the unpopular marriages like the inter religious marriages.. social marriages... so govt of India is hoist on its own placard when it says it will look at only one type of marriage when Special marriage act has existed for so long
When union of India in various places of the counter.. it says social, culturally ingrained for the marriage... it forgets that Special marriage act was created as an alternative to the socially culturally ingrained form of marriages or the unpopular marriages like the inter religious marriages.. social marriages... so govt of India is hoist on its own placard when it says it will look at only one type of marriage when Special marriage act has existed for so long
The constitution bench will resume hearing at 2 pm
Justice Ravindra Bhat: The protection you seek will want us to give a wider declaration....
Senior Advocate Abhishek Manu Singhvi: The validation of same sex marriage along with consequences is a very big victory.. this court cannot stop murders but it can say that murder in law is wrong..
Justice Ravindra Bhat: The value of the right is such that the state is under an obligation to protect you
What prevents the state from protecting you even now?
Senior Advocate Abhishek Manu Singhvi: Because decriminalization does not guarantee me the right to live with the dignity that as of a married couple
Chief Justice DY Chandrachud: Let us come back after lunch
Senior Advocate Abhishek Manu Singhvi: The validation of same sex marriage along with consequences is a very big victory.. this court cannot stop murders but it can say that murder in law is wrong..
Justice Ravindra Bhat: The value of the right is such that the state is under an obligation to protect you
What prevents the state from protecting you even now?
Senior Advocate Abhishek Manu Singhvi: Because decriminalization does not guarantee me the right to live with the dignity that as of a married couple
Chief Justice DY Chandrachud: Let us come back after lunch
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Senior Advocate Abhishek Manu Singhvi: The heart of this case is not the statutory provisions or notice objection regime.. the heart of the case is right to choose.. and the heart of the matter is marital relationship.. this is regardless of gender or gender identity... and to manifest the idea of love into marriage regardless of the identities is the heart of the case. the obverse heart of the case is discriminatory denial to a section of the community to do it based on that sex, sexual orientation, gender or gender identity..Navtej was momentous and it was little done in vast undone and this case is significantly done. This case is removing the next brick of discrimination.
Senior Advocate Abhishek Manu Singhvi: I will not repeat 95 per cent of submissions made by Mr Rohatgi. I will finish by tomorrow lunch time.
Chief Justice DY Chandrachud: Please wrap it up today
Senior Advocate Abhishek Manu Singhvi: This is a matter of some moment.. I will give some facets.. saying in points is a virtue that you are putting against me..
Justice SK Kaul: See you have experience in this court.. nowhere in this country can arguments go on indefinitely...
Senior Advocate Abhishek Manu Singhvi: Some matters are evolving and there are questions by the bench.. So i need to answer the same
Justice SK Kaul: Absolute outer limit is today..
Chief Justice DY Chandrachud: Something from bench to bar.. it is not that you have longer time to decide it.. you will decide it better.. at times you forget also
Justice SK Kaul: We have to get used to finish cases in time bound matter because there are other cases also.
Senior Advocate Abhishek Manu Singhvi: Non discriminatory inclusion is first head, the notice being sent under Special marriage act regime.. is the second head and the third one is molding and tailor the remedy which is effective on the ground
Chief Justice DY Chandrachud: Please wrap it up today
Senior Advocate Abhishek Manu Singhvi: This is a matter of some moment.. I will give some facets.. saying in points is a virtue that you are putting against me..
Justice SK Kaul: See you have experience in this court.. nowhere in this country can arguments go on indefinitely...
Senior Advocate Abhishek Manu Singhvi: Some matters are evolving and there are questions by the bench.. So i need to answer the same
Justice SK Kaul: Absolute outer limit is today..
Chief Justice DY Chandrachud: Something from bench to bar.. it is not that you have longer time to decide it.. you will decide it better.. at times you forget also
Justice SK Kaul: We have to get used to finish cases in time bound matter because there are other cases also.
Senior Advocate Abhishek Manu Singhvi: Non discriminatory inclusion is first head, the notice being sent under Special marriage act regime.. is the second head and the third one is molding and tailor the remedy which is effective on the ground
The five judges discuss
Justice SK Kaul: Here we see sisters daughter as prohibited relationship but in many communities it is allowed.. so we are a diverse country...
Senior Advocate Mukul Rohatgi: Regarding the age if two males are getting married both can be 21 and for females it can be 18 for both of them
Justice Ravindra Bhat: But you want to recognize it as persons.. then how male and female.. you cannot shift in and out
Chief Justice DY Chandrachud: See when Ashwini Upadhyay came here we rejected the plea to remove the minimum age of marriage since then even a 4 year old girl could have got married.
Senior Advocate Mukul Rohatgi: Regarding the age if two males are getting married both can be 21 and for females it can be 18 for both of them
Justice Ravindra Bhat: But you want to recognize it as persons.. then how male and female.. you cannot shift in and out
Chief Justice DY Chandrachud: See when Ashwini Upadhyay came here we rejected the plea to remove the minimum age of marriage since then even a 4 year old girl could have got married.
Senior Advocate Mukul Rohatgi: now coming to special marriage act... section 2(b) degrees of prohibited relationship... so as per part 1.. man cannot have any relation with all males including here in apart from father and the women cannot have relation with all females in the part except the mother..
Chief Justice DY Chandrachud: so if two men are getting married..it is not just part 1 will apply.. then if 2 women gets married..then it is not just part 2 which will apply... but if you see this is a tacit implication that special marriage act did not contemplate same sex marriage..
Senior Advocate Mukul Rohatgi: Every facet of life where we face pitfalls should end.. law must take positive steps.. state should come forward and say that they accept gracefully... in Navtej centre in affidavit had said that they leave it to the court.. but court commented on it that centre should have taken a stand.. decriminalising was the first step and affirmative steps remain which will help me lead a dignified life like any other person
You go to Khajurao and the sexual acts are depicted there for thousands of years. there is no european influence... it was in fact there since then.. society has existed in the shifting sands of time... British influence prevailed since they made the laws and those victorian model was imposed
You are dealing with something which is beyond the normal. it deals with the public confidence which wrests on this court
I have no representation in the parliament and that is why it is the courts we come to. Courts have always struck down the argument that even if one person is impacted then an action is struck down... in navtej also the miniscule minority point was overruled... if one mans fundamental right is affected he has a right to approach the court
You go to Khajurao and the sexual acts are depicted there for thousands of years. there is no european influence... it was in fact there since then.. society has existed in the shifting sands of time... British influence prevailed since they made the laws and those victorian model was imposed
You are dealing with something which is beyond the normal. it deals with the public confidence which wrests on this court
I have no representation in the parliament and that is why it is the courts we come to. Courts have always struck down the argument that even if one person is impacted then an action is struck down... in navtej also the miniscule minority point was overruled... if one mans fundamental right is affected he has a right to approach the court
Popular morality cannot defer the decisions of this court for the legislative process
Constitutional morality will become a habit for the people when the same is upheld by this very court.NALSA, Puttuswamy and Navteh was the groundwork laid down by this court already
Senior Advocate Mukul Rohatgi: Society accepts what the law is... i gave example of widow remarriage act and law acted with alacrity.. and here we need to push the society to acknowledge us as equals in all respect because the constitution says so and the moral authority of this court is there.. this court enjoys public confidence.. the decrees will be violated of people do not have confidence. whether parliament follows the law or it does not... the society will follow the law laid down
The petitioner i am appearing for has come out to his parents and the relationship was accepted by parents by even a reception was held by the parents of the boy... this is in a small town where this has happened with parents who are from the earlier generation
This court cannot stop at annulling section 377 but grant us equal rights to marry like heterosexual couples so that we can live in society with dignity
Senior Advocate Mukul Rohatgi: I am equal to heterosexual groups and it cannot be so that their sexual orientation is correct and all others are incorrect. I am saying let there be a positive affirmation and since we have been held to be equal starting for NALSA and Navtej then there should be marriage should be equal.. we will not be treated as lesser mortals and there will be full enjoyment of right to life.. you go to a school.. write parents name.. etc and all of this create issues.. concepts have evolved and i dont blame the special marriage act 1954.. but its been 74 years since then and society has evolved
Justice SK Kaul: Everything cannot change at once.. once its recognised then you are married and if people then do not recognise you as married then its a violation of our order if we agree with you...
Senior Advocate Mukul Rohatgi: But real benefits should flow..
Justice SK Kaul: If marriage is registered under 1954 act under same sex then it is a registered marriage and benefits will flow.
Senior Advocate Mukul Rohatgi: Please see a chart that I have prepared
Justice SK Kaul: Everything cannot change at once.. once its recognised then you are married and if people then do not recognise you as married then its a violation of our order if we agree with you...
Senior Advocate Mukul Rohatgi: But real benefits should flow..
Justice SK Kaul: If marriage is registered under 1954 act under same sex then it is a registered marriage and benefits will flow.
Senior Advocate Mukul Rohatgi: Please see a chart that I have prepared
The court may be pleased to direct that all laws were benefits ought to flow for marriage couples for heterosexual relations also apply to same sex marriage couples.. we have spent in carefully drafting this... so that there is an explicit declaration.. if we succeed then we should get an explicit declaration
We are being buried under the pressure of the majority. Oh look they are in minority we are said.. it is not the law but it is the mindset which is bothering us in daily life
Senior Advocate Mukul Rohatgi: We are in a way revisiting something which has already been decided. We need to go at least ahead in some areas.. at least in areas where the law is secular and not touching personal laws.. like payment of gratuity act.. where pension is given only the basis of marriage.. judges pension is only given to spouse and if a same sex couple member becomes a judge someday then how will they get pension.. look at motor vehicles act.. pension act.. juvenile justice act provides for adoption and you cannot adopt unless you are married...
Justice Ravindra Bhat: When it comes to personal law this will also affect it.. this court will have to engage itself at a number of times.. the issue is we are not looking at is a whole but in a truncated matter.. thus for convenience we say ok under special marriage act.. but others who are not aware of this civil form of marriage they are denied this right.. if they choose their religion they are out of it and the connection with personal laws.. keep all this in mind
Senior Advocate Mukul Rohatgi: Instead of colonial legislation we can use the word colonial mindset. some parts of mindset remains even after the 377 judgment... whether you look at centre or state submissions.... so in a sum... wherever husband and wife is used make it gender neutral by using spouse and man & woman should be made persons... thus a large part of this will solve our projected interpretation of special marriage act and this must also apply to the acts across the spectrum...
Senior Advocate Anand Grover: We have been told to finish by tomorrow
Chief Justice DY Chandrachud: I think tomorrow was an overstatement by me
Senior Advocate Mukul Rohatgi: I have a suggestion...
Justice Kaul: We will not permit you to go here and there
Senior Advocate KV Vishwanathan: My submissions are limited to counter and additional counter by them including international jurisprudence
Advocate Arundhati Katju: We need to make submissions for the transgenders as well
Solicitor General Tushar Mehta: Before the petitioners start, I have placed one document on record. In continuation of my request that states be heard.. Union of India has written to all Chief Secretaries that their views could be given
Chief Justice DY Chandrachud: Excellent.. then states already know about it.
Senior Advocate Mukul Rohatgi: I am challenging a central law and merely because a subject is in concurrent list it does mean states have to be joined.. insolvency was challenged before this court and that was in concurrent list as well.. but states were not joined
Chief Justice DY Chandrachud: You do not have to labour on this point
Senior Advocate Mukul Rohatgi: The letter was issued yesterday and notice was issued 5 months ago.. this could have been done earlier
Chief Justice DY Chandrachud: Let us go back to your submissions now
Chief Justice DY Chandrachud: I think tomorrow was an overstatement by me
Senior Advocate Mukul Rohatgi: I have a suggestion...
Justice Kaul: We will not permit you to go here and there
Senior Advocate KV Vishwanathan: My submissions are limited to counter and additional counter by them including international jurisprudence
Advocate Arundhati Katju: We need to make submissions for the transgenders as well
Solicitor General Tushar Mehta: Before the petitioners start, I have placed one document on record. In continuation of my request that states be heard.. Union of India has written to all Chief Secretaries that their views could be given
Chief Justice DY Chandrachud: Excellent.. then states already know about it.
Senior Advocate Mukul Rohatgi: I am challenging a central law and merely because a subject is in concurrent list it does mean states have to be joined.. insolvency was challenged before this court and that was in concurrent list as well.. but states were not joined
Chief Justice DY Chandrachud: You do not have to labour on this point
Senior Advocate Mukul Rohatgi: The letter was issued yesterday and notice was issued 5 months ago.. this could have been done earlier
Chief Justice DY Chandrachud: Let us go back to your submissions now
Constitution bench assembles for Day 2
