11 May 2023 3:38 PM GMT
On the final day of hearings in the marriage equality case before the Supreme Court, the counsels for petitioners argued their rejoinder submissions on rights of queer couples to adopt and raise children, on workability of relief sought by the petitioners, and on statutory interpretation among other things. The bench comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan...
On the final day of hearings in the marriage equality case before the Supreme Court, the counsels for petitioners argued their rejoinder submissions on rights of queer couples to adopt and raise children, on workability of relief sought by the petitioners, and on statutory interpretation among other things. The bench comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha heard the arguments and reserved the judgement today.
Studies show no adverse impact on children raised by queer couples: Senior Advocate Dr Menaka Guruswamy
Senior Advocate Dr Menaka Guruswamy, appearing for the Delhi Commission for Protection of Child Rights (DCPCR), in her rejoinder, responded specifically on the submissions of same sex parenting and adoption rights of same sex couples argued by National Commission for Protection of Child Rights (NCPCR). The arguments of NCPCR can be found here. In her submissions, Guruswamy provided the bench with multiple studies as well as decisions of other constitutional courts such as South Africa and Brazil on the effects of adoption and parenting by queer couples. Citing a statement by the Indian Psychiatric Society, a society which consists of 7000 psychiatrists all over India, she said that as per the society, there was no evidence to indicate that individuals on the LGBTQIA+ spectrum could not partake in raising a child. On the contrary, discrimination against children raised by queer couple was something which could lead to mental health issues. Thus, as per the society, children raised by same sex parents were to be protected from stigma. She added–
"There are over 50 countries in the world that allow same sex couples to adopt. So that is more than the number of countries that allow same sex marriage."
Citing more studies carried out in countries which allow queer couples to adopt, she stated that three things remained the same in all these studies–
1. Adoption by queer couples would not have any adverse impact on children;
2. Lack of protection of children raised by queer couples would have adverse impact on children;
3. Human sexuality develops quite early. Thus, young LGBTQIA+ people would be adversely impacted by lack of protection against stigma.
Guruswamy even stated that as per studies, the academic results of children raised by same sex parents from birth outperformed children raised by heterosexual parents by 0.139 standard deviations on academic tests. Concluding her arguments, Dr Guruswamy said–
"I would hope that in future when the state comes to argue for or against a case, the state would locate its findings, its opinions after talking to community and relying on studies that exist since last 3 decades."
Unworkability is not a defence against constitutional examination: Senior Advocate Saurabh Kirpal
Senior Advocate Saurabh Kirpal argued that the basic idea was to be an equal citizen of India and to have the same rights as everyone else. Accordingly, a declaration of marriage could not be granted in a vacuum and must be formalised on basis of its practical impact of any two people's lives. He said
"There must be some formal aspect to carry out that larger constitutional right. Section 4 of SMA gives just that. SMA will not become unworkable for heterosexuals. There are aspects which may become unworkable. But slightly unworkable is better than nothing. And nothing is what we have right now."
On the argument of respondents that a declaration as sought by petitioners would not be workable, he argued that unworkability could not be used as a defence to constitutional examinations. He added–
"Future parliaments will become very clever and say that why should I bother amending constitution to save a legislation, I will just make it so complicated that striking it down becomes unworkable and therefore it has a constitutional protection. There is reason why no case has been cited before the court where the word unworkability has been used as a defence to constitutional examination. Because it's not a barrier."
On similar lines, Advocate Vrinda Grover argued that after the judgement in National Legal Services Authority v. Union of India, different High Courts of the country ensured the workability of the declaration of the court. She added that not granting rights to queer people would only increase violence against them.
Parliament can turn a blind eyes, courts cannot: Advocate Arundhati Katju
At the outset, Advocate Arundhati Katju submitted that the first content of right to marry must be status of being married itself. She argued that the status of being married itself, which was different than the rights and obligations which flow from marriage, was necessary to confer dignity on a non-heterosexual couple. She then stated that it was the very nature of Article 141 of the Constitution to bind and confer obligations on parties. She said–
"In NALSA, the formulation that this court gave was first to indicate the content of Part III rights when it came to Transgender persons and then to actualise those rights through specific directions that were given to the Centre and the state government. Any declaration must be actualised through an enunciation of SMA."
Citing directions from the judgement in NALSA, she argued that all directions in the judgement were traceable to the enrichment of part III rights. She asked–
"What has been the effect of the directions coupled with the declarations that fell from my lords in NALSA? Did Parliament stopped debating the issue? Did state legislature stop debating the issue? Did social debate on these issues stop? Not at all."
In this context, she provided an example of the State of Uttar Pradesh and how it implemented the directions given by the court in NALSA by amending the Uttar Pradesh Revenue Code 2020 to introduce the terms "third gender spouse" and "third gender minors". She said–
"This is the current state of laws. So not only do states recognise successors to the estate as third gender children as successors to estate but they also recognise the possibility of third gender marriage and situations where they maybe judicial separation of such persons...Your lordships opened the door. Your lordships tell us as a country where our constitutional values stand. Then a social debate, a legislative debate happens and then we adhere to the constitution."
Her final submission pertained to the respondents argument that owing to the vast problem of statutory interpretation, the court should not touch the issue. Responding to this, Katju argued the petitioners were not running away from the questions of statutory interpretation but were just saying that the court will find solutions pertaining to issues which arise before it in individual cases as persons come before it.
"Parliament can choose when it decides to address an issue. Parliament can turn a blind eye. But your lordships, the High Court, and the courts below, the family courts, and the civil courts do not have that luxury."
Advocate Karuna Nundy also furthered her submissions and contended that Chapter 3 of SMA (Sections 15-18) required registration of marriages and these provisions were gender neutral and may come to the petitioner's aid being read into SMA. She also gave an example of the Parsi marriage laws, which were regulated by English law prior to their codification and also had no religious source. She said–
"What we are saying is a declaration would go a long way towards recognising my rights. Do not let my humanity be reduced to separate single identity."