Same-Sex Marriage Hearing Live: Day 3 Proceedings End, To Resume On Monday

SC Same-Sex Marriage Hearing Live: Hello and welcome to ABP Live blog on Supreme Court's hearing on the legal validation of same-sex marriage in India. Follow this space for all latest updates

Background

SC Same-Sex Marriage Hearing Live: Hello and welcome to ABP Live blog on Supreme Court's hearing on the legal validation of same-sex marriage in the country. A five-judge constitution bench comprising Chief Justice D Y Chandrachud and justices S K Kaul, S Ravindra Bhat, P S Narasimha and Hima Kohli is hearing the petitions which were referred to the bench for an authoritative pronouncement on March 13 by the CJI-led bench, saying it is “very seminal issue”. The proceedings of the court will be streamed live and can be viewed on the official YouTube channel of the Supreme Court at https://www.youtube.com/@supremecourtofindia5950. The hearing can also be accessed live on Supreme Court's official website at https://main.sci.gov.in/ Speaking to ABP Live, the petitioners said this is a question of fundamental rights in the Constitution, which must be upheld even if it does not have social or majority support, because that is not the yardstick.  Petitioners Ananya Kotia and Utkarsh Saxena shared with ABP Live various issues related to the petition, including rights, societal views, and the impact the verdict will have on the LGBTQ+ community in particular and India in general.    Utkarsh Saxena, who is also one of the lawyers in the case, said: “Because this is a question of fundamental rights in the Constitution, you don't need social majority support to pass something. Even at the time of decriminalisation, if you polled the country at large, it's not necessary that everybody was on board. But that's not the yardstick, that's not the benchmark for upholding people's fundamental rights.” One of the petitioners, a couple from Hyderabad, in their plea, said the “non-recognition of same-sex marriages is violative of the right to equality and the right to life under articles 14 and 21 of the Constitution”.  Supriyo Chakraborty and Abhay Dang, who have been together for more than 10 years, have asked the court to give legal recognition to their marriage under the Special Marriage Act. They have asked the court to extend the right to marriage to the LGBTQ+ community.  "I really want my mother to introduce Abhay as her son-in-law legally, loudly, proudly,” said Supriyo Chakraborty, talking about the reasons that pushed him to file the petition, hoping it will pave the way for a new set of rights for the queer community in the country.   Ahead of the hearing, Supriyo spoke to ABP Live to discuss why all Indians should care about this case.   “Everybody should think about it,” Supriyo said, adding that one does not have to be queer to be interested in the matter. “It’s a question about humanity here.” 

20/04/2023 16:41:22

Day 3 Hearing Ends, Proceedings To Resume On Monday

Hearing to resume on Monday. Mondays, which are usually miscellaneous days, will now have the constitution bench hearing.

20/04/2023 15:33:51

LGBT People Adept At Raising Kids: Petitioners

Advocate Vishwanathan says: "Gay, lesbian, LGBTQIA people are adept at raising children compared to heterosexual couples."

20/04/2023 15:32:10

No Encroachment Of Legislative Space: Petitioners

Sr Advocate KV Vishwanathan, appearing for the petitioners says, "Here the prayer is to make the law being struck down... the court is reading it down to save the statute. So, here there is no encroachment of the legislative space. This will ensure we are not looked at as anathema to the society." (Bar & Bench)

20/04/2023 14:07:59

Same-Sex Marriage Hearing Live: Dr Singhvi refers to Oscar Wilde

While concluding his submissions, Dr. Singhvi referred to Oscar Wilde.

"He was a homosexual in that era, he was imprisoned for it. He put this- “And alien tears will fill for him pity's long broken urn. For his mourners will all be outcast men and outcasts always mourn,” he said, as per Live Law.

20/04/2023 14:04:16

Same-Sex Marriage Hearing Live: By decriminalising homosexuality, we've recognised that people of same sex can be in stable relationships: CJI

"In last 69 years, our law has really evolved. When you decriminalise homosexuality, you also realise that these are not one-off relationships, these are also stable relationships. And by decriminalising 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," CJI Chandrachud said, as quoted by Live Law during the Day 3 hearing on allowing Same-Sex Marriage.

19/04/2023 16:09:43

Same-Sex Marriage Hearing Live: Day 2 Hearing Concludes, Proceedings To Resume Tomorrow

Advocate Singhvi concludes his submission for the day, saying: "A lesbian couple may have children by donor insemination and a gay couple may bring a child of someone else or adopt. Homosexual couples can have same interdependent sexual relation like heterosexual couples."

19/04/2023 16:07:51

Projection of Gender Identity Inhibited By Govt's Stand: Petitioners

"The projection of the gender identity, which is a part of free speech, is inhibited by your stand, which allows that right unfettered in the heterosexual category. But how is it a reasonable restriction for me? The silence is being read in the counter and the stand of the government as a restriction," says Singhvi.

CJI : Not much as statutory silence as much as failure to enact a law

Singhvi: More than failure, they will not recognise it. (Bar & Bench)

19/04/2023 15:34:27

Societal Values Can't Trump Non-Discriminatory Principles: Petitioners

CJI Chandrachud says that the basis of a classification cannot be conflated with a purpose, to which Singhvi cites a judgment regarding evening law classes for candidates. "Societal values cannot trump non-discriminatory principles," he says.

"There is another facet of manifestly arbitrariness. Now there is substantive fairness. These atypical manifestations of family units are not only deserving of protection of law but also social welfare institutions."

19/04/2023 15:31:50

Making Special Marriage Act Agnostic To Sexual Orientation Not A Leap Of Faith: Petitioners

Advocate Singhvi appearing for petitioners says: Special marriage act is a non-religious mode of marriage.

CJI: So you are saying since special marriage act is agnostic to faith, making it agnostic to sexual orientation is not a leap of faith. "Yes, to put it simply," replies Singhvi.

19/04/2023 14:51:30

State Can't Discriminate Based On Characteristic Over Which An Individual Does Not Have Control: CJI

CJI 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. Govt does not have any data also to show that same-sex marriage is an urban elitist concept.

19/04/2023 14:39:21

Adoption, Surrogacy, Tax Exemption Others Simply Require Marriage: AM Singhvi Tells Court

Adv Singhvi argues for petitioners in court, says, "Adoption, surrogacy, interstate succession, tax exemption, tax deductions- it simply requires marriage."

19/04/2023 12:47:46

I Have No Representation In Parliament, That Is Why We Come To Court: Adv Rohtagi

Mukul Rohtagi says, "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 man's fundamental right is affected he has a right to approach the court."

19/04/2023 12:08:47

When Highest Court Of Land Says You Have Right To Marry, Society Will Accept...: Petitioners' Adv in SC

When the highest court of the land says that you have a right to marry, that is what will drive the society to accept this group, argues Adv Rohtagi for the petitioners.

19/04/2023 11:31:21

Not Law, But Mindset Is What Bothering Us In Daily Life: Argues Adv Rohtagi In SC

"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..," says Advocate Rohtagi while arguing for petitioners.

19/04/2023 11:15:33

One Has To Be Married For Pension, Gratuity Payment To Spouse: Rohtagi Argues For Petitioners

Arguing for petitioners, Sr Adv Rohtagi puts examples of pension, and gratuity for payment to the spouse.

He said, "We want to get us real rights where day to day things are involved - Gratuity Act, Pension Act, Juvenile Justice Act- it provides for adoption- you can't adopt unless married."

"Take payment of the gratuity act. Other acts will provide pension. They provide pension to only to spouse- the underlying thing is that they're married. A judge's pension will go to a spouse- you have to be married," he added.

19/04/2023 11:11:17

Arguments Begins In SC As Hearing Continues On Day 2

Day 2 of the hearing on the legal validation of same-sex marriage has begun in the Supreme Court. Both sides have begun putting in their arguments.

19/04/2023 10:56:33

Centre Files Fresh Affidavit In SC Seeking To Implead States, UTs Party To Case

Central Government has urged the Constitution Bench through a fresh application that views of state governments are taken into account since "marriage" is in the concurrent list.

"It is clear that the rights of the States, especially the right to legislate on the subject will be affected by any decision," states the affidavit filed by Centre.

On April 18, the Department of Legal Affairs has also written to all Chief Secretaries of states to submit their views on same-sex marriage in case notice is not issued to them. Union says states should submit their views in 10 days so that the Centre can present the case before the Supreme Court.

18/04/2023 16:09:04

First Day Of Hearing Comes To An End. Bench To Resume Tomorrow

The first day of the same-sex marriage case hearing has come to an end. Constitutional court will reconvene tomorrow. For the day, the bench rises.

18/04/2023 16:05:41

'I Am Not Seen As A Criminal, But I Am Still Percieved As A Person Who Is Not As Good..': Advoate Rohtagi

Advoate Rohtagi stated: “I am not perceived as a criminal but I am still perceived as a person who is not as good, unworthy of standing shoulder to shoulder in public arena.”

18/04/2023 16:02:07

'It Is Like Ok 377 Gone But You Remain In Your Closet': Advoate Rohtagi

Advoate Rohtagi stated: "The court held that denying right to express sexual orientation to a LGBTQI person it is denying right to citizenship... here also is same.. it is like ok 377 gone but you remain in your closet... and don't come out.. privacy and dignity goes hand in hand ..dignity is life lived to its fullest."

18/04/2023 15:53:39

'Argument Cannot Be Raised To Leave It To Parliament': Advoate Rohtagi

Advoate Rohtagi stated: “This argument cannot be raised to leave it to parliament, because your lordships are the protector of fundamental rights. No mandamus lies to the parliament. In Navtej judgment it was said that full media publicity should be given to the verdict but nothing happened. This is disdain of the direction of this court.”

18/04/2023 15:50:30

'In Indian Society, Every Parent Wants Their Child To Be Settled': Advocate Rohtagi

“In the Indian society, every parent wants their child to be settled. One of the aspects of settlement is not only to choose your education and vocation but also marriage, family…So we must have it too. I request this court to grant it to us,” said Advocate Rohtagi. 

18/04/2023 15:46:23

LGBTQ+ Community Possess The Same Human Right As Hetrosexual Person: Advocate Rohtagi

"LGBTQ community possess the same human right as a heterosexual person and thus they have a right to marry and cannot be said to be left alone.. thus we request this court to grant us this relief," said Advocate Rohtagi. 

18/04/2023 15:41:39

Each Of Us Are Social Animals & So State Cannot Say That We Will Leave You Alone: CJI

"Yes each of us are social animals and so state cannot say that we will leave you alone but state cannot say that benefits of social institutions will be deprived and there is positive obligation on the state... that is what you are saying," CJI stated. 

18/04/2023 15:34:31

Not Proper To Leave LGBTQ+ Community Alone To Be Recognised By Social Institutions, Says CJI

CJI stated: "On one hand LGBTQ community is entitled to say that they can make their own choices and live as they want and then society cannot say that you continue to live but we will not recognize you and deprive you benefit of conventional social institutions so it is not proper to leave them alone to be recognized by social institutions."

Advocate Rohatgi agrees and says, “It's not good enough to say that we'll leave you alone with 377, now be happy.”

18/04/2023 14:47:05

Society Even Didn't Accept Widown Remarriage: Petitioners Say They're Arguing Over Mind Set

Senior advocate Rohtagi said, "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  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."

18/04/2023 14:39:48

We Became Equal In 1950s: Petitioners' Adv Refers To Preamble While Arguing Over Equality In SC

Appearing for petitioners, Sr Adv Rohatgi said, "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."

He added, "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..."

18/04/2023 13:01:31

Same-Sex Marriage Hearing Live: Bench To Resume Proceeding After Break At 2 PM

The bench will now resume at 2 pm after break. 

18/04/2023 12:54:27

Same-Sex Marriage Hearing Live- No Such Thing As Absolute Concept Of Biological Man, Woman: CJI

Chief Justice DY Chandrachud: No such thing as an absolute concept of biological man and woman.

 

18/04/2023 12:35:47

Same-Sex Marriage Hearing Live- You Can Assist On Developing Notion Of Civil Union: CJI To Justice Kaul

Chief Justice DY Chandrachud To Justice Sanjay Kishan Kaul: 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.

18/04/2023 12:34:12

Incremental Changes In Issues Of Societal Ramifications Sometimes Better: Justice Kaul

Justice Sanjay Kishan Kaul says 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.

 

18/04/2023 12:31:33

Same-Sex Marriage Hearing Live- Some Concerns About Hindu Marriage Act: Guruswamy

Senior Advocate Menaka Guruswamy says 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...

 

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.

18/04/2023 12:17:28

Same-Sex Marriage Hearing Live- Two Crucial Words, Marriage And Persons: Abhishek Manu Singhvi

Senior Advocate Abhishek Manu Singhvi: On the canvas, there are two crucial words here marriage and persons. There are two categories of consequences, one is minor and major consequences of marriage, marriage has to have some consequential benefits even in this limited canvas the bench must travel a little further.

Adoption according to me is crucial, so if the court holds marriage of same-sex is legal but such a right is an empty shell. One is heterosexual marriage, one is homosexual marriage.. so one criterion is sex based... and if court holds that same-sex marriage is valid.. so it does not mean that persons with all shades are included... correct position will be to allow marriage between two consenting adults.

18/04/2023 12:12:05

Same-Sex Marriage Hearing Live: CJI Chandrachud Reads Out US Govt's Defence Of Marriage Act

CJI Chandrachud: If you see the US, Sept 1996, the 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 in 2022, US Respect for marriage act.

What we, therefore, have to consider is that these matters- even in the US, and 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?

18/04/2023 12:09:19

Same-Sex Marriage Hearing Live: Rohatgi Takes Court Through History Of Same-Sex Marriages Across World

The definition of marriage in Obergefell v Hodges is classic. It was used in 2015 also.

See the definition after 2019, after the society has evolved- "the legal union of a couple".

Read the definition of same-sex in 1019- "ceremonial unit of two people of the same sex whether man or woman". So the government of India is following an antiquated edition of Black's dictionary. If you're following the same dictionary, follow the latest one.

You can't follow a version that is 50 years old. I request, for example, two petitioners in the first petition- who are they? Two individuals who have a bond of faith, and love- want to reach the status of a married couple and have a family.

For them, your lordships have removed one block - that they can't go to jail. The second step has to be affirmative which is the recognition of the right to marriage.

Society is resistant to change. Humans are resistant to change. So society follows what the law is and what the law is and what is said in the parliament or this court.

18/04/2023 12:06:01

Same-Sex Marriage Hearing Live: Concept Of Marriage Changed Over Last 100 Years: Mukul Rohatgi

Senior advocate Mukul Rohatgi argues: Concept of marriage has changed over the last 100 years. Earlier we had child marriages, and temporary marriages, a person could marry any number of times - that also changed. There was a lot of protest against the new avatar of the Hindu marriage act.

18/04/2023 12:00:20

SC Same-Sex Marriage Hearing Live- You Cannot Tell Us How To Decide: CJI To Mehta

Chief Justice DY Chandrachud to Solicitor General Tushar Mehta: you cannot tell us how to decide.

Solicitor General Tushar Mehta: this is a very sensitive matter.

Chief Justice DY Chandrachud: we want to know what they have to argue

18/04/2023 11:59:07

SC Same-Sex Marriage Hearing Live: Pleas Not Maintainable, Says Solicitor General

Solicitor General Tushar Mehta argues for the Centre that it's not maintainable since all states might not be on the same page .

We are still questioning whether it's for the courts to decide on their own.