Wednesday, December 6, 2023

Centre reiterates to Supreme Court: Let Parliament decide on complexities, ramifications of legal recognition to same-sex marriages

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The Union government on Tuesday told the Supreme Court that considering the complexity of the issue and the social ramifications regarding legal recognition for same-sex marriages, the issue should be left to the Parliament to decide.

The Supreme Court is currently hearing the 19 petitions seeking legal recognition of same sex marriages.

The Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli had started hearing the petitions on April 18.

Appearing for the Central government, Solicitor General Tushar Mehta said the real question in the matter was who would take a call on what constituted a valid marriage and between whom.

The SG said there were several ramifications not only on society, but unintended ramifications on other statutes as well, adding that various debates were required by the society, states and civil society groups. 

The top law officer said the Apex Court could still save the rest of the exercise, noting that 160 legal provisions spanning different statutes could not be reconciled if the prayers were allowed. 

He further urged the court to first send it to the Parliament or state legislatures. Stating that no one was sitting on a value judgment, he said there was no stigma attached and that the Parliament has accepted their right to choice, autonomy in terms of sexual preference and privacy in the form of intimate relationships.

The 2019 Transgenders Act conveyed the legislative policy by bringing within it not only transgenders, but various other communities. The question was whether the right to marry could be prayed for as a judicial order, he said.

As per the SG, the right to marry could not mean compelling the State to create a new definition of marriage as it was not an absolute right. 

He said mere declaration would not erase the question that if they had these rights, how those rights would be regulated and a variety of attendant problems that only the Parliament was able to take care of. 

The SG noted that the moment any right was recognised, it had to be regulated. Even today, there was no absolute right to marry for heterogeneous couples. 

The law provided for minimum age criteria, outlawed bigamy, prohibited marriage between certain relationships, and even the separation was regulated.

The law for heterogeneous couples also regulated when a person could get married, how many times he/she could marry, whom he/she could marry and how to legally separate from his/her spouse, he added.

The SG said several regulatory provisions followed legal recognition of a social relationship and only Parliament could conceive of several situations that may arise and regulate them. It was impossible for the court to conceive all possible scenarios.

He appealed to the top court of the country to rewrite an enactment to suit a situation. Stating that he was not opposing it, the SG asked who would do it. He further said that in his view, only the Parliament could do it. The Parliament could consciously omit this provision under the Special Marriage Act, he added.

He noted that the court could neither change the character of a law, nor it could override the legislative intent. Besides, the court would not read into a statute a term of larger amplitude. A person in place of a man or woman was of wider amplitude, he added.

SG Mehta said if the prayers were allowed, they would affect the heterogeneous couples. This court can’t use different lenses for different categories of persons under the same law. It would be impossible for this court to reconcile the situations. 

Below is the text of the hearing on Day 5 over same-sex marriages:

CJI DY Chadrachud: I wanted to appeal to all the members of the bar but now that you know, we are dealing with CBS. All my colleagues and I, we feel that there should be some cutoff beyond which- every morning we can’t have 600 MB files and huge papers being filed every morning. Even for the other side, it becomes very difficult for them to anticipate what they have to prepare. So we must have a cut off where the arguments starts. Then if something exceptional comes up then we will reflect. Basic material shouldn’t come everyday of the hearing.

Adv. Karuna Nundy: My lord I filed a 3 page note. We didn’t keep it to 1 page, although we could’ve have. The only reason that we didn’t is because we wanted to reproduce the paragraphs we were referring to rather than jump on them.

Hon’ble Chief Justice D.Y. Chadrachud: so what are the submissions – can you formulate your points-?

Adv. Karuna Nundy: yes my lord. My lord I seek a declaration that includes my rights as queer, non-heterosexual and same sex people to marry under the secular legislations, special marriage act, the foreign marriage act and provisions for OCI card holders under the citizenship act that constitute a self contained part to grant entitlement based on registration, recognition of foreign marriages. I will briefly go through what I will be covering and then go to the last point first. Number one – under the special marriage act it has been submitted that 99.9% of people fall in the gender binary and are men or women. Whether they are queer, trans or straight. We adopt the other arguments of Dr. Singhvi but on this point we differ. The 2011 census showed that there are at least 4.8 M and this is a huge underestimate of trans people in this country. Many of them are in this court room and I mention this because of the way that they have been demonized in the public. Ms. Muskan who has rendered excellent Assistance is one such person, who is going through such-

Hon’ble Chief Justice D.Y. Chadrachud: In first point you have referred to section 3 and 2(k). 3 speaks of non discrimination against non binary persons, that’s fair enough. The the next point in which you say – just explain that. You say that rule 5 of the transgender gender roles already recognizes marriage of trans persons. Can you read out the rule ?

Adv. Karuna Nundy: Rule 5 refers to the application of certificate of identity. Do my lords have it ?
My lady under these two rules (5 and 6) a certificate of identity is used for trans people. In that regard an affidavit is required to be submitted and the form of the affidavit is provided in the rules itself. So it’s the form I am on more than the rules. The rule is the power to issue the form and I’m on the form.

Hon’ble Chief Justice D.Y. Chadrachud: But you say that rule 5 already recognizes marriage of trans persons. Where do we get that from ? Because it’s an important point. Which page is the form ?

Adv. Karuna Nundy: Form is at 3224.
Form 2 says “I the form of affidavit to be submitted by a person applying for certificate of identity for transgender persons under rule 4 of transgender persons protection act, 2020 read with section 6 of transgender persons –

Hon’ble Chief Justice D.Y. Chadrachud: what’s important is I perceive myself as a transgender person who’s gender does not match with gender assigned at birth.

Adv. Karuna Nundy: yes my lord, I declare myself as transgender. But the top part say that I so and so, son / daughter / ward / spouse of –

Hon’ble Chief Justice D.Y. Chadrachud:
So person who is already in a marital relationship can therefore seek for a gender reassignment like-

Adv. Karuna Nundy: Or a self declared identification, precisely what is followed. Indeed as my lord Justice Bhat had said- there is no, some people may take a divorce pursuant to this and many people in our society will not. And there is no bar in this regard in the act.

Hon’ble Chief Justice D.Y. Chadrachud: So it already recognizes say a, pre existing marriage of a person who is trans.

Adv. Karuna Nundy: The pre existing marriage but also the subsisting marriage. Because when after they transition it continues to subsist.

Hon’ble Justice Ravindra Bhat: There is no bar in law.

Hon’ble Chief Justice D.Y. Chadrachud: Somebody who seeks to assert their identity as trans may well be in a marital relationship.

Adv. Karuna Nundy: But they also continue to be in that relationship. And that relationship under law is not annulled, dissolved or taken away from them.

Hon’ble Justice Ravindra Bhat: Law accommodates it because these are not ground for nullity or divorce by the other spouse. Because there are possibilities, various possibilities. There could be children, there are dependent families. So there’s a general acceptance. If someone has a problem, they seek out to an individual and to seek for something to be done.

Adv. Karuna Nundy: There is another mention of this. In form 6. And the illustrative list of documents on the next page includes a marriage certificate at item 12.

Hon’ble Ravindra Bhat: Form 2 will apply to married people to seek identity as transgender people. These forms accommodated such people. The rule makers have contemplated situations where people seek gender roles or rather regender themselves. They recognize and acknowledge that there could be pre existing marriages.

Hon’ble Justice Kishan Kaul: Is it your case that because the rules recognize the concept of pre existing marriage in such a scenario that itself amounts to permission to have a marriage afterwards. There is pre existing marriage which will continue and it may not dissolve as there may be a lot
Of ramifications which may arise when the marriage is nullified. Does that imply that after change suppose you are unmarried and there is a change, then you can marry. Is that what you’re trying to say ?

Adv. Karuna Nundy: That is precisely right. What I’m saying at this point is that state already recognizes through delegated legislations and the forms that have been issues under that delegated legislation, some trans marriages. And that some at the moment is restricted to marriages that were pre existing prior to my declaration of identity of transition biologically.

Hon’ble Justice Ravindra Bhat: The marriage recognition is marriage was solemnized when both parties were not trans.

Adv. Karuna Nundy: But is subsists because there is no bar in law.

Hon’ble Justice Ravindra Bhat: Let me complete, Perhaps there is no ground for divorce in marriage laws therefore there is a recognition of fact that once somebody finds something, we will not disturb it. Because disturbance might cause other consequences. So you recognize that situation. That is one thing to accommodate in form of rules or even forms. If we had to transform that into substantive provision and work backwards as it were there should be some statutory support for that because unless you state that. For instance section 3 or which ever provision says that there shall be no discrimination and then goes onto say in what aspects. So what are the rights and what are the obligations. What are the rights of the persons that seek for identity and what are the obligations of society, the legal obligation. If your arguments is on this, then you will have to go further.

Adv. Karuna Nundy: We have said for example that it has been said in this court, during these proceedings that trans and non binary people are elite, that small portion and etc my lords. The first point addresses that and the second point is on the non discrimination my lord.

CJI Chadrachud: Elite argument you can keep aside because now we are going to the constitutional issues and statutory issues. So elite is a matter of prejudice, it has no bearing on how we decide the matter. Actually these two forms which you showed us, the form 2 is at the stage when you apply for gender identity certificate. Form 6 is after gender re assignment takes place because if you see rule 7(4). Form 6 is supposed to be read with 7(4) because that’s in the title of form 6. And 7(4) says that district magistrate while issuing certificate of identity for change of gender shall simultaneously issue an identity card in form 6 to the applicant. That form in item 12 refers to marriage certificate. So these forms seems to indicate both when the person applies and issues reassignment, they do contemplate that somebody can be a party of a subsisting marriage.

(Case title: Supriyo alias Supriya Chakraborty and Anr vs Union of India)

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