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Same-sex marriage hearing Day 3 live: ‘Closing arguments on Monday’
Hearing on legalising same-sex marriage aka equality marriage is underway in the Supreme Court on it's third day. Check the live updates here:
As the hearing has ended in the Supreme Court today, CJI says the arguments from the petitioners' side will be closed on Monday & requests to split time among lawyers.
If the fundamental right is recognized, the legislative law has to be suitably tailored, Vishwanathan stresses further on.
All that is needed is to add husband, wife, or "spouse" in SMA. Rest will follow. Government need to tailor it, Vishwanathan adds.
Vishwanathan replies to CJI: We have challenged the Special Marriage Act (SMA) as it does not recognise marriages other than heterosexual and the only way to save it, is to equalise it, reading into the statute.
A transperson has the right to marry a person of choice irrespective of gender, says Vishwanathan's briefing counsel.
Vishwanathan cites judgements.
People are moving away from the notion that you must have a boy, CJI says.
Justice Bhat says that the legisation of same-sex will be a gateway & will opens up so many possibilities & so many rights.
CJI: Same-sex couples seek same benefits of marriage. There is a whole range of benefits that cohabitation & marriage provide.
LGBTQ parents are as qualified to rear children as the heterosexual parents, says Vishwanathan.
Homosexual couples are as well suited as heterosexual couples to bring up children, Ramachandran says.
Central Adoption Regulation Authority Rules doesn't permit adoption by a single member unless they are married. Long back in our country, the law was - all that is required is the welfare of the child. If that is applied, it doesn't matter whether it's a heterosexual or a homosexual couple, says Ramachandran.
CJI: Your point is that non-recognition would itself be an act of constitutionality & so to save it you have to do this.
Vishwanathan also says NALSA expressly gives the right to marry.
Vishwanathan stresses that the act will have to be tailored and adds that his petition seeks a declaration.
Vishwanathan cites the judgment in Plessy v Ferguson & states that a similar argument concerning 'equal but separate' was made in the said case.
Vishwanathan says: Even today people who are beyond age of reproductive capacity & medically be unsafe for pregnancy are allowed to marry. Heterosexuals who have decided to not procreate can marry & are saying that all other relationships are fine. You're almost equal, but separate.
If the effect is to defer your right to get married at a time when you desire to, it can't be regarded as procedural because the impact is on your substantive right to get married at the time you choose, CJI adds.
CJI: There's a whole segment in my judgment in Navtej that deals with right to health, mental health and much more.
LGBTQ couples do not have enlightened parents, understanding families, argues adv Ramachandran.
Ramachandran: If I am gay or lesbian or any other category, then my health and happiness depend on a fulfilling union with a person of my choice. It is an aspect of mental health.
Justice Kohli asked is it a restriction or a lack of recognition? To this, the answer is that it is a lack of recognition & that lack of recognition leads to denial of equal protection of law, says Ramachandran.
Ramachandran says the very age differential which the law prescribes is rooted in the traditional perception, which is patriarchal, where the male is the bread earner, the provider and so he must be old enough to earn and the female is child-bearer and is fertile at 18. That is the archaic logic applied here. For the moment we'll learn to live with this lack of logic.
Centre's statement was careless, unnecessary & insensitive. The institution of marriage is not just the gateway to various socio-economic rights, but it is a societal protection from their own natal, parental families, says Ramachandran
Sr Adv Raju Ramachandran says that the two petitioners, a Dalit woman from a town in Punjab and an OBC woman from Haryana, and similar petitioners should put down the Centre's assumptions on 'urban elites'.
Hearing to resume after lunch break.
CJI DY Chandrachud also questioned on whether two spouses, who belong to a binary gender essential for marriage
Singhvi also argued that the Special Marriage Act (SMA) notice period only has the purpose of "serving patriarchy".
Before the lunch break, Singhvi told that if same-sex marriage is legalised, the minimum age requirement will also apply based on the gender the person identifies (18 for women and 21 for men)
Justice Kohli: Karnataka HC judgment stated it (marital rape) is a crime.
Singhvi: There's one flipside to this. Marital rape is not recognised in this country. As of today, rape is not a recognised crime in marriage. It may be a ground for divorce or cruelty.
CJI says the court is trying to "expand on the concept of constitutional guarantees".
Justice Bhatt interprets Singhvi as saying that the Special Marriage Act (SMA) provided a "framework" and is "broad enough to assimilate later developments”.
Singhvi: Ofcourse it has been expanded by the Verma committee to meet other forms. But otherwise, it is non consensual penile-vaginal penetration.
Singhvi: It's a criminal offence which is being defined "non consensual penile-vaginal penetration".
CJI: Why can't we apply that to a homosexual couple?
Singhvi: Then some provisions which may not create any issues- which are only created for and applicable to heterosexual couples- such as 27 (1) (a). You cannot have a system which applies uniformly to everybody, like rape.
Singhvi: The next point is that your lordships will keep in mind that I am focusing on the discriminatory parts of the provisions. We're not challenging or interpreting all provisions. We're challenging the discriminatory portions of gendered provisions.
Singhvi: The next question which may arise is what about the trans categories. My submission would be that in 99% trans categories your lordships is able to slot the person as per the gender which he/she professes.
Singhvi: There is a question concerning age. The simple and the correct solution is that whichever of the same-sex couple is involved, that age will apply.
Singhvi now takes the court through other judgments.
Sr Advocate Singhvi and CJI DY Chandrachud comment on the interpretation of the SMA.
Singhvi: Let me put it very bluntly. When you enacted the law, in the debate in the parliament, you may not have homosexuals in your mind. You may not have considered them.
CJI DY Chandrachud: And by decriminalizing homosexuality, we have not just recognised treating relationships between consenting adults of the same gender but we've also recognised that people who are of same sex would even be in stable relationships.
Singhvi: Yes, when you have a particular paradigm applying to the heterosexual group, your lordships will find it discriminatory not to apply the same to homosexual groups.
CJI: Dr Singhvi, this was a case where the act squarely applied to unmarried relationships. The principle was that if the act applies to unmarried Heterosexual relations, there is no basis to exclude unmarried relations amongst homosexuals.
Singhvi cites a judgement.
CJI Chandrachud says petitioners must conclude submissions by 4 pm today
CJI DY Chandrachud: No, there are SC's which would give 30 mins to argue. We've given 3 days already, it's enough.
Advocate Karuna Nundy: Just to hear the matter in fullness, perhaps one more day could be granted.
Advocate Arundhati Katju: I've prepared a list of arguing counsels as per their seniority. And I've indicated the time they'll take to argue. Please see.
The Supreme Court on Thursday entered into its day 3 of its hearing on a bunch of at least 15 petitions regarding the demand for marriage equality in India.
Wednesday's hearing began with Centre's affidavit to the Supreme Court seeking to admit all the states as parties in the matter, stating that the case requires an assessment of state rules and customs of different sections of society.
Centre has raised a preliminary objection to the hearing and said the parliament is the only constitutionally permissible forum to decide on the creation of a new social relationship. Meanwhile, senior lawyer Mukul Rohatgi, appearing for the petitioners, stated the affidavit was “irrelevant”.
Rohatgi, defending the rights of the LGBTQIA+ community, argued that the State's recognition of the union of homosexual couples will reduce the stigma around homosexuality and gave references to several case laws where marriage equality was upheld in other countries.
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