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 are 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.
Senior Advocate Menaka Guruswamy: In this evolving consensus, the 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. As 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.
SC hearing on April 19, 2023
Judges discuss how recognising same-sex marriage would affect minimum age of marriage The minimum age of marriage for men and woman is different under the law. It is 18 years for women and 21 for men. The issue that rose here was how would this age stand affected if same-sex marriage is recognised.
Rohatgi referred to alimony and maintenance by husband via Sections 36 & 37 of the Special Marriage Act which gives rights only to women, regarding alimony and maintenance by husband.
'Actually my Lord, apart from anything else, so many years have gone by (since the law was passed) that this could be otherwise unconstitutional today to say that only a husband will pay (maintenance) to the wife.,' he says 'Maintenance under the Hindu Marriage Act is either way. If the wife is earning more then she will pay. This (under the Special Marriage Act) is unconstitutional today.'
What is the notice period requirement under the Special Marriage Act?
Section 5 of the Special Marriage Act, mandates the parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage. Singhvi is pointing that this regime invites vigilante groups and others to interfere.
After this, popped the issue of adoption amongst gay couples. Let's see what court said?
CJI says it is not entirely true that same sex couples can't adopt a child
Later, hearing resumes. Singhvi is now arguing that marital status is a gateway to other legal and civil benefits such as tax benefits, inheritance and adoption. CJI interjects and says it is a misconceotion that gay or lesbian couples cannot adopt.
“Incidentally, as the law stands today, one of them can adopt. So this whole argument that it will have a psychological impact on the child is denied by the fact that even today, as the law stands…once you have decriminalised homosexuality, it is open for people to live in together and one of you can adopt. Of course the child loses the benefit of parenthood so to speak,” he observed.
CJI said "no data from govt to show same-sex marriage is 'urban or something'.
He also observed that there is no data from the government that "this (same-sex marriage) is urban or something." The Centre, in its application earlier, had stated that what has been presented to the court on the subject by the petitioners is “a mere urban elitist view” and “the competent legislature will have to take into account broader views” of various sections.
Singhvi cites Rent Control Act as an example of interpreting law. He cites the Rent Control Act as an example of interpreting the law in keeping with the times. “The protection given by this Act to the surviving partners….the law was enacted in the days that the tenant was likely to be a man, with a dependent wife, it was understandable that the preference was given to the widow over anyone else in the family. But in 1980 that preference extended to widowers…”
Basically, this argument tends to say that with changing times, law needs to be interpreted accordingly.
Which countries allow same-sex marriage?
Out of the 32 countries in the world that recognise gay marriage, at least 10 countries have recognised same-sex marriages by court rulings, whereas the remaining 22 countries allowed it through legislation, Human Rights Campaign, a US-based LGBTQ advocacy group said.
Trans and gay people can’t donate blood: What the Centre stated in SC.
Last month in a separate case, the Centre recently told the Supreme Court, through an affidavit filed by the Union Ministry of Health & Family Welfare, that the exclusion of transgenders, gay people, and female sex workers as blood donors by including them in the “at risk” category for HIV, Hepatitis B, or C infections is based on due consideration of scientific evidence.
SC hearing on April 20, 2023
5-judge constitution bench assembles.
Advocate Arundhati Katju: Based on seniority, I have prepared a list as to who will argue and it does not include interveners.. it has the time that will be taken per counsel.
- Apr 20, 2023 11: 35 (IST)
CJI: There can be 150 interventions..
Adv Karuna Nundy: Please give a day to the intervenors.
CJI. No. We could have heard in 30 minutes... but we gave three days, so that is enough.
CJI: Dr Singhvi, please wrap up your arguments in 45 minutes, Sr Adv KV Vishwanathan and Mr Ramachandran will please finish in 1.5 hours.
Next week we will sit Monday, Tuesday, Wednesday and Thursday like Ayodhya case, no miscellaneous days.. and we will hear throughout... the other side also has to hear.
After next week Justice Kaul is travelling, If everyone says then we will hear in July.
CJI Chandrachud: If constitution benches have to really go on then five judges have to leave their regular boards and that is why previously these benches were not formed. You do not know the pressure of listing cases; if we do not ration time then these constitution benches cannot be formed.
CJI: Dr Singhvi your time starts now. Start.
Adv: I appear for a gay activist..
Justice Kaul: So there are 50 gay activists.. we have to hear all of them or what?
CJI: It cannot happen like that. thank you. Let us now move with Dr Singhvi.
Sr Adv Singhvi: The legal heart of this case is interpretation... it is apt for courts to read in words to make the statute convention compliant.. a court can modify the meaning and hence both primary and secondary legislation..
CJI: You are telling us to read into the statute and read the word spouse instead of man and woman or husband and wife.. but you say it was way back in 1954 when the law was brought in to protect people who want to be in matrimony without getting into personal laws... but you say with decriminalizing section 377 we have recognized implicitly therefore that same-sex couples can be in a stable relationship....
CJI: Looking at India, we have reached the intermediate stage.. by decriminalizing homosexuality contemplates that same-sex couples can stay in stable marriage-like relationships and this was contemplated. Not just a physical relationship but a stable emotional relationship.. once we have crossed that bridge.. the question is should the statute recognize marriage-like relationships.. or recognize the marriage itself.. it is for us to redefine the existing definition of marriage.. we have to see that if binary genders fall within the existing definitions of marriage. ... we have to see by expanding the definition we will violate the earlier judgments.
CJI: What happened in the UK is not what happened in India. HRA was to meet the treaty obligations and for us it was the principles of constitution which is above the treaty. Here were are not utilising the constitution to read down or strike down statute we are expanding the meaning of the statute in terms of constitutional guarantees.
Sr Adv Singhvi: Regarding age, whichever same-sex couple is involved, that minimum age will apply. 18 and 21 ... Thereby no stitching needed on legislative cloth. In 99 percent cases the gender can be decided on the gender professed by the trans. Like if she is a man but is on feminine side, then age of woman will be applied.
Justice Kaul: In heterosexual relationship there can be rape.. then how can there be no scenario that same issue does not apply to a homosexual relationship.. so the question is we say that marriage can be registered under SMA but what about all other future eventualities..
Sr Adv Singhvi: Marital rape is not recognized in this country...
Justice Kohli: But matters are pending.
Sr Adv Singhvi: If the bench recognizes same-sex marriage under special marriage act, this court will recognise marriage under this act...
Justice Kaul: I am saying laws to heterosexual relationship will also apply to homosexual relationship?
Justice Kohli: There are many shades on the palette. Do we want to go that far?
Senior Advocate Raju Ramachandran begins: Way back in 1956 Justice Vivian Bose said the constitution exists for poor, the butcher, the baker, the cradle maker.. then in 1982 Randhir Singh a constable came before this court for equal pay and Justice Chinappa Reddy noted that he was a clog in a giant wheel but the specialty of the constitution was that he can approach the highest court of this land...I represent Kajal, a dalit woman from the town of Mukhtsar in Punjab and her partner Bhavna, an OBC from Bahadurgarh in Haryana.
Sr Adv Ramachandran: Originally there was no codified law of marriage in India and then the need was felt for law of marriage for the British in India and that contemplated marriage only among Christians.. then comes keshab chandra sen and Bramho samaj... then they demanded a secular law of marriage for Bramhos.. they did not mind calling themselves Hindus.. but law at that stage required parties to renounce their respective religion..
Sr Adv Ramachandran: If my fundamental right to marry is read into Article 21 then I cannot be asked to give notice of the exercise of my fundamental right at a future date in the context of a notice regime which is designed to enable parental families and other busybodies to create roadblocks and Justice Bhat as a single judge in Delhi HC had to deal with this situation where the enthusiastic marriage registrar did not send the alert not only to them but also to the parental families... the judgment said how it is only about pasting it in DM office and not send it to the families.
Sr Adv KV Vishwanathan: If we can be sons, daughters, sisters, father in law, uncle, aunt, and partners... then what holds us to give marital status to same-sex couples... it is only the sexual orientation which is beyond my control and it is not in conformity with heterosexual norms and thus will not accord you protection like the normal married couples.. then is procreation is a valid defence to negate the right to marriage.
- Apr 20, 2023 04: 03 (IST)
CJI: Please tell us the reliefs you seek.
Sr Adv Vishwanathan: To save the special marriage act statute, the principle of equalisation can be adopted. reference can be taken from the Sikkim old settlers association case.. on the age issue... the default age can be kept as 18 for the third gender in compliance with the Indian majority act... if fundamental right is recognised... then state has to make statutes in adherence to it.
CJI: We will ask Senior Advocate Geeta Luthra to be the nodal senior counsel so that time rationed and petitioners can finish on Monday.
- :Apr 20, 2023 06:00 (IST)
The constitution bench proceedings of Day 3 hearing in same-sex marriage case comes to an end.
Hearing to resume on Monday (24th April, 2023). Stay tuned!
Alert⚠: Same-sex marriage hearing on April 24 postponed due to two judge's indisposition
SC hearing on 25th April, 2023
CJI cites provisions under the Hindu Code Bills
CJI gave the example of the Hindu Code Bills, which he added, covered far-reaching legislative reforms such as provisions saying that the widows share would be equal to the children’s post death of her husband, and asked Kirpal if someone from another community could seek application of the Hindu Code Bills, arguing that not doing so would violate their rights under Article 14.
The CJI added, “Therefore, the absence of a broader legislation covering a wider class of persons is not a ground to strike down that legislature”.
Justice Bhat: 'Getting the right may not be such an issue, but making it workable is'
Justice S Ravindra Bhat intervened to mention an example of Hindu women being denied the right to property until 2005, despite equality as a fundamental right. He said that some states in south India granted women this right, but "we had no qualms about excluding women from this benefit. Some social institutions are created by society, and acknowledged by customs and courts. Getting the right may not be such an issue, but making it workable is”.
Kirpal talks about gay brain drain
Concluding his arguments, Kirpal mentioned the issue of the gay brain drain, where all the best minds of a particular community will be forced to move to lands where their rights are recognised instead.
SC hearing on 26th April, 2023
Day 5 of the same-sex marriage hearing begins in the Supreme Court
Advocate Karuna Nundy begins submissions seeking recognition of queer marriage under secular laws --- specifically provisions for Overseas Citizenship of India (OCI) card holders which involves aspects of the Citizenship Act.
Key Supreme Court verdicts that moved the needle on LGBTQ rights in India
As the Surpeme Court continues to hear a bunch of pleas seeking legal recognition for same-sex marriages.
Advocate Katju speaks about succession rights under the SMA
Advocate Arundhati Katju responding to some of the questions raised by the judges earlier spoke about how the SMA must be read with regard to succession rights. Since the judges have already indicated that they will not look into personal laws, the issue of how religious succession laws will be interpreted came up.
Section 20-21A of the SMA deals with succession. It provides that if both parties to the civil marriage are Hindu, Sikh, Jain or Buddhist, parties will be governed by the Hindu Succession Act. If only one party is a Hindu, Sikh, Jain or Buddhist and the practices another religion, the Indian Succession Act is applicable and if a Muslim, Christian or Parsi opts for a civil marriage, with or outside their religions, the Indian Succession Act is applicable.
Justice Bhat: Court needs to look into how the succession provision will apply to same-sex couples
Justice Ravindra Bhat observed that the Court would have to look into how this provision will apply to same-sex couples since the Court does not intend to alter personal laws. Katju also stated that same-sex couples must be treated the same way as heterosexual couples are for the issue of succession.
Mehta cites the 2022 Dobbs v Jackson that overruled Roe v Wade
Mehta also relies on the 2022 Dobbs v Jackson, which held that the US Constitution does not confer a right to abortion. In doing so, the US Supreme Court overruled both Roe v Wade (1973) and Planned Parenthood v Casey (1992) which had recognised a woman's right to make reproductive choices.
These judgments correctly acknowledges the limitations of judicial review.
CJI: 'Don't cite Dobbs. We have gone way beyond Dobbs and fortunately so'
CJI Chandrachud tells Mehta, "If you are relying on Dobbs to argue judicial restraint, then in India, we have gone far beyond that."
"Dobbs represents a view of the American SC that a woman has no control over her bodily integrity. This theory has been debunked long back in our country."
He further adds, "Don't cite Dobbs. We have gone way beyond Dobbs and fortunately so. We can at least credit ourselves that we are far ahead of our times than many of the western countries on this."
Mehta quotes from the debate on the Hindu Marriage Act
Mehta read out parts of the debate on the Hindu Marriage Act, where a member asked to include homosexuality as a grounds for divorce. (Similar provisions exist under the Special Marriage Act)
Mehta mentioned that then Minister DP Karmakar had said in response to the member that in future “if homosexuality becomes a problem, then we shall face it courageously.
SC hearing on 27th April, 2023
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Apr 27, 2023, 10:20 IST
Petitioners seek the Union of India's ‘blessings.’
This hearing on same sex marriage was heard by the Supreme Court on April 26 wherein the petitioners sought the Union of India's "blessings", but Solicitor General Tushar Mehta, representing the Centre, stated that their prayers were "vague" & he cited "societal acceptance" as a requirement for recognizing a union and stated that it had to be done through Parliament.
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Apr 27 2023, 10:20 IST
Today, Centre to present its arguments
The Centre presented its arguments on same-sex marriage before the Supreme Court, following the conclusion of the petitioners' arguments. Solicitor General Tushar Mehta presented the Centre's case, who urged the court to leave the matter to Parliament.
Tushar Mehta elucidated that, "whenever the legislature had intervened in the matter, they made corresponding amendments to other statutes. Furthermore, he noted that none of the affected statutes had been challenged in this case, indicating that the court could not do what Parliament can."
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Apr 27 2023, 10:43 IST
Queerphobic, regressive, and hegemonic: Statement of solidarity- Statement made by the Bar Council of India (BCI) against the upcoming Supreme Court hearing on marriage equality has been criticized by more than 30 LGBTQIA+ collectives, consisting of over 600 students from law schools across India. The groups have condemned the BCI's statements as "queerphobic, regressive, and hegemonic."
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Apr 27 2023, 11:21 IST
Is it about sexual orientation? as asked.
“What is the fundamental argument of the petitioner..? It is right to choose the sexual orientation," SGI Mehta asked. CJI Dhananjaya Y Chandrachud replied, “No, they are saying sexual orientation is given to me. It is not a matter of choice but an innate characteristic."
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Apr 27 2023, 02:46 IST
SG Mehta stated: No legal recognition of relationship as marriage
“Right to love or cohabit or choose a partner is there but there is no fundamental right to seek recognition of that relationship as marriage," the Solicitor General said.
“Can we tighten up your submission by saying that when you say that there is no fundamental right to seek recognition of that relationship as marriage or in any other name- can we recast it as legal recognition?" the CJI asked, prompting a clarification from the SG.
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Apr 27 2023, 02:49 IST
‘No prohibition as per law’
“There's no bar in our law to having any form of ceremony. The question is about legal recognition," said CJI Chandrachud.
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Apr 27 2023, 03:06 PM IST
We have progressed, and decriminalized same-sex relationships: 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," he said.
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Apr 27 2023, 03:17 PM IST
This case links adoption, maintenance, and succession: CJI
“This case is much more difficult for us. These have linkages everywhere - adoption, maintenance, succession," he said.
The court also flagged adoption laws and discussed the merits of children being reared by single parents.
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Apr 27 2023, 03:37 IST
No obligation on state to recognise all relationships: 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….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," the SG said.
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Apr 27 2023, 03:38 IST
SG Tushar Mehta stated: Ideally marriage in heterosexual couples shouldn't have been regulated too,
“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," he also said.
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Apr 27 2023, 03:51 IST
Cisgender not transgender - CJI corrects SG Mehta
As SG Mehta noted that the act covered 'all spectrums and shades' the Chief Justice note that lesbians or gay individuals were not 'transgenders'. Mehta had tagged such individuals as ‘gender queer’.
“You may be correct in saying that the definition of transgender persons covers the entire spectrum but gays and lesbians are completely different…Cisgender 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," said CJI Chandrachud.
SC hearing on 03rd May, 2023
On 27 April, SC had 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.
Govt's stand on same-sex marriages: ‘Seeking recognition of relationship not fundamental’
During the hearing, Solicitor General Tushar Mehta representing the Centre stated that there is ‘ no fundamental right in seeking recognition of a relationship as a marriage. “Right to love, right to cohabit, right to choose a partner, right to have a sexual orientation is a fundamental right but there is no fundamental right to seek recognition of that relationship as a marriage or in any other name".
- May 3 2023, 06:55:48 AM IST
Same-sex marriage: SC hints it may refer challenge to notice provision under Special Marriage Act to the 2-judge bench
On April 27, The Supreme Court stated that it might refer for adjudication by a two-judge bench, the challenge to the 30-day prior notice provision under the Special Marriage Act, 1954. The Special Marriage Act, 1954 provides a legal framework for the marriage of people belonging to different religions or castes.
Over 120 eminent citizens wrote to President Murmu opposing legal sanction for same-sex marriages
More than 120 eminent citizens, including retired high court judges and former bureaucrats, have written to President Droupadi Murmu opposing what they called "highly objectionable attempts" to legalize same-sex marriages.
Kangana Ranaut supports same-sex marriage
Lending support to same-sex marriage, actor Kangana Ranaut has said people's preferences do not matter when their "hearts are one". The National Award winner also described marriage as "a bond of love".
Petitions being heard by SC on same-sex marriage
Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage whereas the Centre opposes the petitions. One of the petitions previously raised the absence of a legal framework that allowed members of the LGBTQ community to marry any person of their choice.
In an affidavit filed before the SC, the government submitted that despite the decriminalization of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognized under the laws of the country.
Same-sex marriage hearing: A recap of past 6 hearings
Day 1: Notions of man, woman, and genitals do not define gender in an absolute sense: Supreme Court said.
Day 2: Argument that children of same-sex married couples will be impacted incorrect; gay, lesbian persons can already adopt individually: Supreme Court said
Day 3: Supreme Court flags trolling based on oral observations; questions raised during hearings
Day 4: Recognition of same-sex marriage would require re-enactment of other laws or amendments; is this our job? Supreme Court asks.
Day 5: United States Supreme Court decision in Dobbs vs. Jackson is incorrect; we have gone far ahead: Supreme Court of India says.
There are genderless people, gender as per mood swings; cannot reconcile with statutes: SG Tushar Mehta says.
Day 6: Supreme Court says recognizing same-sex marriage is up to the legislature; but asks Centre to devise means to confer rights without a marriage label
SC had asked the Centre to respond on possible social benefits by May 3
Earlier on 27 April, SC had the 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.
A committee headed by a cabinet secretary to be constituted to look at the issues faced by same-sex couple
Supreme Court Constitution Bench begins hearing on a petition related to same-sex marriage. Solicitor General Tushar Mehta apprises SC that a committee headed by the cabinet secretary will be constituted to look at the issues faced by the same-sex couple.
Heterosexual couples weren't intended to be a part of the Special Marriage Act (SMA): CJI stated
SMA was supposed to be special law for heterosexual forms of relationships (men and women of different religions for example) and that same sex law was never intended to be a part of this and this will lead to a host of legislative changes.
Omnibus demand for an equation with heterosexual marriage, argues a lawyer
Hearing resume. Senior lawyer Rakesh Dwivedi argues there is an omnibus demand as same-sex, intersex and transgenders want an equation with heterosexual marriage.
CJI cites the example of a same-sex couple marrying a person from another gender
CJI Chandrachud gives an example of a same-sex couple who marry a person from another gender. “Like 2 men in a relationship and one of them marries a woman then there will be no bigamy. This will be applicable to a trans person as well..", Bar and Bench quoted the CJI. “So if there are two men in a relationship and one of them marries a woman, there will be no offence of bigamy", the CJI added.
Hearing to resume on 9 May
The hearings will resume on Tuesday, 9th May 2023
Note: The hearings will keep on updating. Keep checking each day.
Source: livemint, Indian Express, Bar & Bench, CNBC, Indian Express, Livelaw, NDTV
LGBTQ Rights in India
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Before the Decriminalisation of S. 377
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After the Decriminalisation of S.377
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Any act against the order of nature is a criminal act.
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No such offence exists as the SC struck down S. 377
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Any sexual act between Man and Man, woman and woman, or human being and animal are criminal act.
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The offence is decriminalised but not legalised in India.
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Punishment – 10 years of imprisonment with a fine extendable to life imprisonment.
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No Punishment
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Conclusion
Is same-sex marriage legal in India? Hoping a tremendous judgment to be passed & that this case will clearly answer this. The LGBTQIA+ community needs an anti-discrimination law that gives them the freedom to forge fulfilling relationships and lives regardless of their gender identity or sexual orientation and places the responsibility for change on the state and society rather than the person.
There is no question that same-sex couples planning to get married must be granted the fundamental right to marry someone of their choice once people of the LGBTQ community "are entitled to the full spectrum of constitutional rights." More than a dozen nations have made same-sex unions lawful.