Chief Justice of India D.Y. Chandrachud on Thursday told the 19 petitioners seeking egal recognition to same-sex marriage to finish the arguments today only, stating that it will hear the petitions seeking legal recognition of same–sex marriages in the same way as it heard the Ayodhya land dispute case, taking it up on Monday and Friday also.
The Constitution Bench of the Supreme Court comprising the CJI, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli commenced hearing on the petitions pertaining to marriage equality rights for LGBTQAI+ community.on April 18 and were set to hear the same in the coming week also.
The CJI said in the coming week, the Apex Court will hear the case on Monday, Tuesday, Wednesday and Thursday. This Court will hear it without a break, he noted, adding that the top court of the country heard the Ayodhya case on Mondays and Fridays also.
Normally, the Constitution Bench does not sit on Mondays and Fridays.
The CJI told the petitioners that during lunch time, they should sit together and make points, so as to complete the arguments today.
After a lawyer representing one of the petitioners sought more time for arguments, the CJI said three days were enough. The Supreme Court needs to hear the other side (Central government) in detail, he added.
Justice Kaul said that they were only dealing with one aspect (If Special Marriage Act can be interpreted to allow same sex marriage). He asked the petitioners not to widen the ambit.
The CJI then observed that this was the reason why some of the earlier CJIs could not constitute a Constitution Bench. Five judges had to leave their regular work, he added.
When the matter was called out, Arundhati Katju said that she had submitted the list sequence of the Counsels appearing on behalf of the petitioners, along with their required time. At this juncture, the Bench indicated that the petitioners should conclude their side of arguments by today itself.
Dr. Singhvi submitted that the ultimate guiding star for the present batch of matters was the intention of statute, which was to provide the institution of marriage to all, irrespective of religious belief and permission. He further submitted that while enacting the statute, the Parliament could not have thought about homosexuals, but the society has evolved since.
He said the institution of marriage was very important and in order to provide a stable relationship, a same-sex couple should also be granted the same right of marriage. It was imperative to expand the scope of framework in order to assimilate this evolution, he added.
The Senior lawyer submitted that various provisions of the Special Marriage Act could be interpreted in a matter which recognised the same-sex couples.
Terming the 30-day notice and objection regime of the Special Marriage Act as unconstitutional, he said that such a regime was only peculiar to the Special Marriage Act, 1954 and directly struck at the right to privacy, autonomy and choice of the couple. He further submitted that this provision rather invited violence and was in contravention with the purpose of the Act.
Senior Advocate Ramchandran, appearing on behalf of the petitioners, namely Kajal (a Dalit woman, employed at a bakery) and her partner – Bhavana (belonging to OBC, from Bahadurgarh, working as an accountant), submitted that the issue at hand was not limited to the concerns of the urban elite as alleged.
He argued that marriage was not just a gateway to socio-economic privileges but also sometimes a societal protection from one’s own parental families. He submitted that couples such as the petitioners he represented did not have enlightened parents and thus, they have had to move to the Delhi High Court for protection orders.
In light of this, the notice and objection scheme contemplated under the Special Marriage Act needs to be done away with, he prayed, adding that a protocol be put in place on the lines of the one set out in the judgment of Shakti Vahini granting protection from the Khaap Panchayat.
He argued that a “separate but equal” argument that the Union has sought to put forward could not be countenanced.
The Senior Counsel submitted that the Union, in its counter-affidavit, had stressed the importance of procreation, arguing that as people in a same sex marriage cannot procreate, they need not be granted the right to marry. In response, he submitted that even many heterosexual females above the age 45 years may not be able to safely become pregnant, but were still allowed to marry. Therefore, procreation could not be a ground to deny the right to marry.
With respect to the Transgender Act, Vishwanathan showed a chart prepared by him depicting the types of combination of relationships that can be entered into and how they can be brought within the purview of the Special Marriage Act.
The arguments for the petitioners were led by Senior Advocate Mukul Rohatgi, assisted by Senior Advocates Saurabh Kirpal and Dr. Maneka Guruswamy, along with Advocate Arundhati Katju and a team of Advocates from Karanjawala & Co.
Solicitor General Tushar Mehta and Additional Solicitor General Aishwarya Bhati appeared on behalf of the Union government.
Senior Advocates Geeta Luthra, Anand Grover and Jayna Kothari represented other petitioners, who were still to argue.
Full text of Day 3 on petitions seeking legal recognition of same-sex marriages
Respondent 1 : I’ve prepared this for your lordships convenience as per the seniority after discussing with the counsel on this side. This is as per seniority my lord and I’ve not – as I’ve mentioned that the bottom this does not include the interveners along with the indicative time per counsel.
Petitioner 1 : My lords my – just wanted to make one mention my lord –
CJI D.Y. Chadrachud : Today – one second. We will, after Dr. Singhvi is done, we will hear Mr. Vibhishan. But on this side, on this side we have to complete the arguments today. We wrap up the arguments of this side today. No question of going beyond today. We have now heard two learned senior counsels who have taken us through everything. Maybe a third learned counsel this side would also be arguing. Everyone else may now – lunch –
Petitioner 1 : My lord I’ve just asked for twenty minutes.
CJI D.Y. Chandrachud : At lunch – No – At lunch – one second. At lunch all of you please sit down and ration the time this way that by four ‘o’ clock this side is complete. No further, then we have to give the other side enough time. So –
Petitioner 2 : May I submit one aspect –
CJI D.Y. Chadrachud : Now, one second. If I’m having a long telephonic conversation my better half only does this to me, which is please now get on with your work and get on with your work and start the conversation. So I’ll just say, on the mentioning – no as in no more mentioning. Dr. Singhvi please argue.
Respondent 1 : I’m obliged
Respondent 2 : Only one aspect my lord regarding an intervention petition my lord. May I submit with your lordships indulgence, one aspect regarding the intervention application. I’ve moved an intervention application, I’m only seeking my lord –
CJI D.Y. Chadrachud : There will be 150 interveners. Please don’t mention because you’ve have everyone on the intervention now.
Respondent 2 : Because the theoretical aspects my lord –
Petitioner 2 : If we are not on other acts heard in just a little bit of fullness. My lord if one extra day perhaps could be given
CJI D.Y. Chadrachud : NO No. Therefore, absolutely, we you know – there are Supreme Courts where the entire arguments could have been over in 30 mins, we have now given three days in this court. I think that’s good enough.
Justice Kishan Kaul : We had indicated from the beginning that we are focusing on one issue and we are going to deal with it. Therefore, the requirement of other interventions, other periods, the nuances are not something we are looking into. So, you know just expanding it again is contrary to what we are constricted to. If everybody, if there are nine people and nine people want to argue for two hours what’s the point of taking up a matter.
Petitioner 2 : because no we’re only seeking a short time.
CJI D.Y. Chadrachud : Just one second.
All the Justices begin to discuss something (microphones off)
CJI D.Y. Chadrachud : Dr. Singhvi. We will request Dr. Singhvi to conclude his arguments in 45 mins by 12:50 and between Mr. Ramchandran and Mr. Vishwanathan we will give you an hour and fifteen minutes.
CJI D.Y. Chadrachud : You know, at the end of it you have to otherwise – What we were thinking was next week, we will sit on Monday, Tuesday, Wednesday and Thursday. So we’ll take it as we did on the case of Ayodhya. We were- there was no miscellaneous. We were working through the week. So we must give them also time.
Respondent : But everybody should get some time.
CJI D.Y. Chadrachud : But then you can merrily go in July, we have no problem because all of us are traveling in the vacation. We’ll take it in July, there’s no difficulty. We’ll give you as much time –
Petitioner 2 : We may be accommodated my lord, just on Monday we will be –
CJI D.Y. Chadrachud : I’ll tell you why because after next week. This bench, Justice Kaul is travelling. My lord is not available after next week for a week. We have no problem, We’ll keep it in July.
Petitioner 2 : My lord Monday just Monday my lord, pro rata time can be divided. The times that we have specified. The time that subject to Mr. Ramchandran and Mr. Vishwanathan’s agreement to this 1.5 hours. The rest of us will divide it pro rata and we will finish on Monday my lord.
CJI D.Y. Chandrachud : We have no problem, let everyone go merrily.
Petitioner 3 : It follows that the homosexual couple who’s marriage-like in the same way that an unmarried heterosexual couple is marriage-like are indeed an analogous situation. Any difference in treatment is based on sexual orientation. It requires an objective justification if it is to comply with article 14. Whatever the scope for discretion area of judgment on these cases maybe. It can be transplanted subject to my lord discretion to the Indian Supreme Court. Whatever the scope for a discretion area has been in these cases may be there has to be a legitimate aim before difference of treatment can be justified. But what could be the legitimate aim of singling out, heterosexual couples for more favourable treatment than homosexual couples. It cannot be the protection of the traditional family.
A traditional family is not protected by granting people rights that they are denied who cannot or will not become a traditional family. What is really meant by protection of the traditional family is the encouragement of people to form traditional families and discouragement of people to form others. There are many reasons why it might be legitimate to encourage people to marry, and to discourage them from living together without marrying. These reasons might have justified the act in stopping short at marriage. Once it went beyond marriage to unmarried relationships the aim would’ve to encourage one sort of marriage and discourage the other. The act does distinguish between unmarried, but marriage-like relationships, and more transient liaisons. It is easy to see how that might pursue a legitimate aim and easy to see how it might justify singling out the Survivor for preferential succession rights. But as Lord Justice Buxton said it is difficult to see how heterosexual will be encouraged to form and maintain such marriage-like relationships by the knowledge that the equivalent benefit is being denied to homosexuals.
The distinction between heterosexual and homosexual couples might be aimed at discouraging homosexual relationships generally. But that cannot now be regarded as a legitimate aim. It is inconsistent with the right to respect for private life accorded to everyone, including homosexuals by article 8 since the Dudgeon case in 1981.
If it is not legitimate to discourage homosexual relationships, it cannot be legitimate to discourage stable, committed marriage, like homosexual relationships of the sort, which qualify the survivor to succeed to the home. Society wants its intimate relationships particularly but not only if there are children involved to be stable, responsible and secure. It is the transient, irresponsible and insecure relationships, which causes so much concern. I have used the term marriage-like to describe the sort of relationship, which meets the statutory test of living together as husband and wife. Once upon a time it might’ve been difficult to apply those words to same-sex relationships because both in law and in reality the roles of the husband and the wife were so different and those differences were defined by two genders that is no longer the case the law now differentiates between husband and wife, in only very few unimportant respects. Husband and wife decide for themselves as to who will go out to work and who will do the homework and child care. Mostly each does some of each. Roles are interchangeable there is thus, no difficulty in applying marriage like to same sex relationships with the greatest respect.
Justice D.Y. Chandrachud : Dr. Singhvi so the case where the act squarely applied to unmarried relationships. The principle was that if you’re unmarried, the act applied to unmarried relationships between heterosexuals. There is no basis to exclude unmarried relationships among homosexuals.
Petitioner 3 : It is the second last formulation of the sentence, which I’m concerned about. That when you have a particular paradigm applying to a heterosexual group your lordship there was absent, something very special. Will find it discriminatory to –
Justice D.Y. Chandrachud : It says marriage-like relationships. So these are not marital relationships but marriage-like relationships of heterosexual couples who are in a stable relationship but who aren’t married. They said that therefore, if you are extending protection to heterosexual couples who are in a marriage-like relationship and therefore, not married. There is no basis to deny it to homosexual couples who are in a marriage-like relationship but who are not married.
Petitioner 3 : I’m grateful to my lord, that’s one. But the language of the paragraph that I’ve read yesterday and today are very – and your lordship is not bound by these judgements. Your lordship will fight persuasive value to the extent your lordship finds.
(Hands over another document and reads from it)
The key question for the courts that are applying such direction is “how to determine when it is or it is not possible to ascribe a rights consistent meaning to the rights legislation?” Although a definitive answer to that question is proved unsurprisingly illusive, its shared assumption to date has been that the line that has been drawn between interpretation on one hand and Legislation on the other. The task assumed by the courts is to search for an interpretation relevant statutory provision that will bring it into conformity with human rights standards.
Beyond the margins of the interpretation however, lies the constitutionally impermissible territory of judicial legislation. That my lordship is an equation. Given this characterisation as essentially interpretive, it is perhaps unsurprising that in my lord, I’ll skip the New Zealand specific para. In the United Kingdom, however, a new model now seems to be emerging. In a series of cases culminating in the decision of the house of lordships, the United Kingdom courts have cast doubt over the centrality of statutory language to the determination of whether the rights compatible reading of legislation is possible in the right of the human rights treaty.
The text is not the law lords have said, determinative. Rather the courts will be constrained only by the underlying thrust of legislation A and the limits of their institutional capacity. This paper discusses Ghaidan and its implications and suggests a remarkable aspect of Ghaidan is that it simultaneously divorces the process of statutory interpretation under HRA from the twin anchors of parliamentary intention and statutory text. In that light it is suggested that the dichotomy between the interpretation and judicial legislation is at the very least under pressure and the courts are in fact appropriating to themselves is significant if nevertheless a subsidiary slice of legislative power. Of the four law lords of the majority the names are given, all but the last delivered a separate opinion of the correct methodology under 3(1). There was however, substantial agreement in this essential principle. Lordships identified the key issue under 3(1) is “how to determine what is possible?” The scheme of 3 and 4 of the treaty envisages that there is a rubicon which the courts may not cross. What is not spelled out is the test that is applied to separate the ships from the goats. Parliamentary intention is not the touch-note. In investigating the line between the possible and the impossible, it was held that the courts was not constrained by the intentions of the Parliament that enacted the legislation. Lord Nickels distinguished the required approach in this respect with the orthodox approach to standard statutory interpretation. Which involves seeking the intention, reasonably to be attributed to Parliament in using the language in question in contrast, section 3 may require departure from the parliamentary intention. The key question being “How far and in what circumstances?” This is because there is another and a counter veiling parliamentary intention which needs to be given full weight. The intention reasonably to be attributed to parliament in enacting 3. So it is an objective test being brought in. Not determinative is statutory text. And it is quite interesting and astonishing though now In a constitutional context, American- English courts are saying this. Earlier it was sac-rage to suggest it to an English court. Remarkably their lordships held that the language of the statutory provision and issue is not the touch note in deciding, which it is not possible under 3(1). This holding had a number of dimensions, further their lordships expressed concern about excessive concentration in a literal or technical way on the linguistic feature of the statue. Rather section 3 requires a broad approach concentrating among other things in a purposive way on the importance of the fundamental rights involved. So intention one way, statutory text one way, now you’ve got third one, test, important fundamental right involved. Secondly their lordships expressed that the proposition that the ambiguity in the statutory language is not a pre-requisite to the operation of 3(1). Thirdly, 3(1) might thus have a role even if the statutory language is not capable of bearing two meanings. Lord Nickels says once it is accepted a three way require legislation to bear a meaning which departs from the ambiguous meaning. The legislation will otherwise bear, it becomes impossible to suppose that parliament intended that the operation of 3 should depend critically on the form of which words adopted by the parliamentary drafts when the statutory provision and the consideration. That would make the application of 3 something of a semantic lottery. From this the conclusion which seems inescapable is that the mere fact that the language and the consideration is inconsistent with the convention compliant meaning. Does not of itself make a convention compliant interpretation under 3, impossible. So your lordships ultimate guide star intention – no, text – no and parliamentary overall purpose – no but the ability to achieve a convention compliant result. Fourthly, their lordships considered that 3(1) empowers the court, in necessity to change the meaning of the legislation. 3 enables language to be interpretative, restrictively, or expansively, but if 3 goes further than this. It also have to require the court to rename words which change the meaning of the enacted legislation so as to make it convention compliant. In other words, the intention of parliament in enacting 3 was that to an extent bounded, only by what is possible. A court can modify the meaning and enhance the effect of both primary and secondary legislation. The lordship’s view is not the touch note in determining whether a convention compliant reading of the legislation is possible begs the question. If not the words then what? How then is one to sort the sheep from the goats ? Their lordships identified two overlapping limits. What is possible under 3(1)? General thrust of the legislation. Second is the court’s institutional capacity, which is defined later on. As to the first lordship held, 3(1) does not authorise the court to adopt meaning that is inconsistent to what they variously described as a fundamental feature of legislation. underlying thrust of legislation. Grain of legislation. A cardinal principle of legislation is very core essence. It is a kind of a basic feature intra-legislation. This notion that the court cannot turn the scheme of the legislation inside out, overlaps with the second point. Which is, courts cannot make decisions for which they aren’t institutionally equipped. Some cases that lordships held call out for legislative deliberation. So in case where the lordships find the whole script has to be written, it has to go to the legislation. This might be the case for example, if the exercise of making the legislation convention compliant would involve the substitution of a detailed statutory scheme.