12 May 2023 3:00 AM GMT
The Constitution bench comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha today reserved its judgement in the petitions seeking for marriage equality for queer persons in India. This article details rejoinder submissions made by counsels for petitions. Other rejoinder submissions can be found...
The Constitution bench comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha today reserved its judgement in the petitions seeking for marriage equality for queer persons in India. This article details rejoinder submissions made by counsels for petitions. Other rejoinder submissions can be found here.
Civil Union not an equal alternative to marriage: Dr AM SInghvi
Through his rejoinder, Senior Advocate Dr AM Singhvi submitted that the petitioners were not seeking interpretation of every gendered word in the Special Marriage Act (SMA) in a gender-neutral way. However, they were only assailing those parts of the SMA that required a constitution-compliant reading on grounds of discrimination, to be governed by the Indian Succession Act (ISA). He argued–
"When it comes to the use of gendered terms to specifically address gendered imbalances of power and therefore achieve substantive equality, limiting such terms to their gendered, heterosexual, context is what is consistent with the law’s underlying thrust."
He then submitted that the right of marriage could not be substituted by providing the queer community the right of a "Civil union" as the same was not a solution or an equal alternative.
"Civil unions do not address the constitutional anomaly presented by exclusion of non-heterosexual couples from the institution of marriage. Civil union is not marriage."
Here, he cited the judgement in Lewis v Harris and argued that by excluding same-sex couples from the institution of marriage, the State was declaring that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples.
"Ultimately, the message is that what same-sex couples have is not as important or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage," he cited.
While concluding his submissions, Dr Singhvi drew an analogy between the current situation and the segregation doctrine of "separate but equal" and stated that such doctrines could not be invoked in civilised societies.
Court must walk the "full mile": Senior Advocate Raju Ramachandran
Senior Advocate Raju Ramachandran commenced his rejoinder by stating that the lack of recognition of rights to the queer community leads to the denial of equal protection of laws. He then stated that the bench had earlier discussed on the possibility of giving a constitutional declaration but not more than that and leaving the issue to legislature like in the cases of Triple Talaq, Transgender Persons (Protection of Rights) Act, 2019, and Data protection. In this context, he said–
"Those three are examples where the majority, majority as reflected in institution of legislature, would have had no serious problem at all. Triple talaq was something which shocked the conscience of people across communities. Therefore, when the court passed a declaration penalising it, it was a matter of fairly easy consensus...Transgender persons- there is a broad societal sympathy with them because they play a social role in our society. But this is an unpopular minority. This is when the court says that it is the protector of unpopular citizens, this is the situation where I'd ask the court to walk the full mile."
He then argued that in a heterosexual marriage under the SMA, women's rights would not be affected because of the higher constitutional mandate of Article 15(3). He added–
"Any provision which is wife specific under the SMA, will stand as it is without being subjected to any kind of interpretive exercise. Gender specific laws concerning man and woman including penal laws, will not be subject to any interpretive exercise. Religious personal laws will not be interfered with and Section 21A may be borne in mind in this connection."
Thus, he submitted that the real test to be applied was whether a traditional reading of marriage as a man-woman union was discriminatory against same sex couple or not. He also stated that even if you the court was provide only a constitutional declaration, the need for a protocol, whether it was protection under SMA or protection of a constitutional right was necessary. Concluding his submissions, he said–
"Unless vulnerable couples are protected by a Shakti Vahini like protocol we won't get relief."
Corresponding duty in Union to recognise right to marry: Senior Advocate KV Vishwanathan
Senior Advocate KV Vishwanathan, appearing for Zainab Patel, argued that more than the right to marry, there also existed a corresponding duty in the Union to recognise the association of non heterosexual couples as married couples in a non discriminatory manner. He sought to first establish the right of queer couples to marry and then the duty of the government to recognise the said right. He contended–
"The 1872 SMA which was repealed by 1954 SMA said that you must give up your religion. In 1950, when the constitution came into force, marriages were by personal laws. If an inter faith couple would have come to your lords and said I don't want to give up my religion, I want same status as people with personal laws, my lords would have found that right and found a corresponding obligation."
In this context, he cited the NALSA judgement and stated that it was the judgement of the Supreme Court which led to the Transgender Persons (Protection of Rights) Act, 2019. He argued that the judgement did not deter the parliament from enacting that legislation and recognising that right. Concluding his arguments, he said–
"Workability will not hold back your lordships from declaring. If so, that declaration will be worked out by the parliament. To that extent, there is a positive obligation. The ethical considerations would also be there in non heterosexual couples. They should also have commitment to one partner, rights in divorce, maintenance, you shouldn't leave someone destitute."
Stigma has resulted in failure to allow marriage: Senior Advocate Anand Grover
At the outset, Senior Advocate Anand Grover submitted that the court had already held that sexual acts barred by Section 377 were not criminal. Thus, the logical thing would be to also agree to association of queer people through marriage. However, the same was prevented owing to stigma. He said–
"The stigma which British laws attached to LGBTQIA community is persisting today and the failure to allow marriage allows that stigma to continue. Apart from 21, 19(1)(c) gives the fundamental right to Association which is realised by marriage...despite the rhetoric of Naz and NALSA being historic, they stopped at that and this allows stigma. Court cannot be a party to that. That would be a tragedy. Court would be perpetuating that stigma. They have not come to terms with it. They're saying you can have sex but don't bring it in our realm of marriage."
Core of SMA is recognising contractual nature of marriage: Senior Advocate Jayna Kothari
Refuting the submissions of the respondents that any kind of reading into the SMA would go against the core of the legislation, Kothari submitted that the core of the SMA was that it moved away from the sacramental nature to its contractual nature. Relying on parliamentary debates concerning the SMA, she said–
"The core of SMA is freedom of choice in marriage...SMA did not exclude any person even in 1954 irrespective of faith and caste and it was based on constitutional principles. When under SMA, transgender persons can come and marry after gender reassignment, we're asking for the right to be extended to all."