Live: Supreme Court Hears Requests Seeking Legalisation Of Same-Sex Marriage

Chief Justice DY Chandrachud: May I suggest one thing. We have placed our perspective on certain issues. You can deliberate on this and give us your note on this.

Senior Advocate Menaka Guruswamy concludes her arguments.

Chief Justice DY Chandrachud: The SMA carved out an exception, by being neutral to religion. But Section 21(A) of SMA, indicates that all other parts of marriage are governed by personal law.
There is no denying the link between SMA and personal law.

Senior Advocate Menaka Guruswamy: There is no denying that milord. But It will follow.

Justice Ravindra Bhat: We don't believe Parliament is going to enact anything.

Senior Advocate Menaka Guruswamy: I don't believe that either my lord.

Justice Ravindra Bhat: Are you truly representing the people before us? There is diversity. There may be unheard voices who may want to preserve their way of life. They may not want to break their traditions.

Senior Advocate Menaka Guruswamy: Those who wish to participate in this new definition of relationship can participate. Those who don't want to, need not. Within the community, there may be people who may not want to participate.

The ability to have the choice is an act of Constitutional principle and 21A of SMA gives all couples that choice.

We don't ask for anything more than that.

Justice Ravindra Bhat: When you are casting a positive obligation on the lawmakers. Is it possible to presuppose the creation of law? How do we weave out an obligation or a mandate?

Chief Justice DY Chandrachud: Even in the context of privacy in puttuswamy or in the Vishaka case, the framework set out by the court has to be fleshed out by the legislature.
The test really is, how far can the courts go?

The counsel who follow you should also address us on this.

Senior Advocate Menaka Guruswamy : My lords have been the north star in many cases, pre the legislature walking the talk. We dont ask for anything special today. We are only asking for a workable interpretation of the Special Marriage Act.

The basic structure also belongs to us. We are also part of its soul. The parliament cannot be the reason to exclude us from this guarantee under the constitution.

Chief Justice DY Chandrachud: You cannot dispute that parliament has the powers to interfere with the canvas covered by these petitions. Entry 5 of the concurrent list. It specially covers marriage and divorce.

Senior Advocate Menaka Guruswamy: This was most the nerve wracking lunch of my life.

In India the parliamentary system is constrained unlike in England. Constrained by the constitution interpreted by the Judiciary.

The second point I'd like to raise is of judicial review which part of the basic structure doctrine.

The govt cannot come to court that this is a matter of the parliament. When our Article rights are being violated, we have the right to come to this court under Art. 32.

The Indian Parliament is a creature of the constitution and does not enjoy unfettered powers.

Senior Advocate Menaka Guruswamy has commenced her arguments.

Hearing resumes.

The bench has risen for lunch.

Senior Advocate Anand Grover: Apart from privacy, autonomy and dignity that has been read into Article 21.. can this also be read into it... it is crucial

Justice Ravindra Bhat: That is the point I made..US had a large number of statutes which prohibited same sex relations and that was outlawed and in the course of that they said they have a right to marry.. so one is a declaratory part and one is limited to relief

In the counter filed by Centre it is like there was no same sex relation in India before the advent of the Britishers. This is wrong. this was prevalent and even scriptures record it. After the British we have imbibed the disgruntlement of the British towards transgenders etc..we carry it even now further

Senior Advocate Anand Grover: I will be focussing on the theory of intimate association of the US. One of my petition is by Hindus who were based abroad and the other one is an interfaith couple where one is a Hindu and one Christian...

Senior Advocate Geeta Luthra: I am only saying there should be one institution that is marriage..we cannot be left halfway from Navtej judgment.. our rights cannot be denied..

Justice Ravindra Bhat: Their both same sex and heterosexual couples could go for civil unions..

Chief Justice DY Chandrachud: You can see what happened the word same sex in the registered partnership act and the heterosexual couple word was struck down as being violative of equality... so all were allowed.

Senior Advocate Geeta Luthra takes the bench through a series of judgments to show how courts have allowed same sex marriage

Senior Advocate Geeta Luthra: Constitutional comity does not just require a comity of nations and India cannot be lagging behind..

12 countries out of G20 has allowed same sex marriage. we cannot be behind even if its just one person and we cannot deny them their rights.. these rights include visas, passports and rights to live in India.. also rights of inheritance .. we cannot just wipe these rights clean and say it means nothing.

Justice Ravindra Bhat: But see the personal law permitting point is there.. so personal law has come into place...

Chief Justice DY Chandrachud: But is it not an exception

Justice Ravindra Bhat: But Chief that is subject to customs isn't it?

Chief Justice DY Chandrachud: Yes yes

Senior Advocate Geeta Luthra: No one can brush my rights under the carpet. my rights as a citizen cannot be denied just because i am living abroad.. once we come to this country we become strangers.. just because my fundamental rights have not been given effect to and my rights are trampled upon and we become invisible

Discrimination is happening on my sex and on the basis of the sex of my partner. It is discrimination on the grounds of sex. marriage is the oldest social institution.. man is also a social being and COVID has shown how difficult it is to live alone... at one time interracial marriages were not recognised in USA and inter caste was not allowed in India.. but it is now.. marriage is an evolving concept.. majority cannot decided the rights of a minority

Senior Advocate Geeta Luthra quotes from John Stuart Mill:

"If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind."

Senior Advocate Geeta Luthra: The petitioners are validly married under the local law. But what a travesty this is that a country where there is robust fundamental rights but I am being denied all of these rights.

This is the reason in Foreign Marriage Act... it says "The Marriage Officer may, for reasons to be recorded in writing, refuse to solemnize a marriage under this Act on the ground that in his opinion, the solemnization of the marriage would be inconsistent with international law or the comity of nations"

Foreign Marriage Act Section 4: Conditions relating to solemnization of foreign marriages.-A marriage between parties one of whom at least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:-

(a) neither party has a spouse living, (b) neither party is an idiot or a lunatic, (c) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage, and (d) the parties are not within the degrees of prohibited relationship

Provided that where the personal law or a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.

Justice Ravindra Bhat: Where do we get which relationships are prohibited.

Senior Advocate Geeta Luthra: It is as under Section 2A...