Day-3 of the court started with the debate on time allocation. At the end of day-2 court announced that the first hour will be allotted to Abhishek Singhvi to close his argument. And then the defendants (those opposing the change to the law) would argue. However, different petitioners related to similar cases request time as they have new things to add to the argument for the change. The Constitutional bench wasn’t particularly happy with the plea. It opined that the court wants to wrap up the hearing soon so that justice could be delivered as soon as possible. CJI referred to the Ayodhya case where the hearing was extended to more than two months and the constitutional bench can’t do that. A Constitutional bench is a special bench of the Supreme Court of India which consists of at least five judges of the court who sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India. It is done only on special occasions. CJI informed that all the esteemed judges of the bench take breaks from their regular duties to be part of the constitutional bench. And it would be an injustice to the court if the time is not well spent.
Representatives of the other petitioners argued that the court believes in the inclusion of people, it is important to hear from different voices. The bench decided to agree and give time to the benches on the condition that all the arguments shall be relevant to the case and no repetitions. It is noticeable that each of the petitions has slightly varied demands. Mukul Rohatgi, Dr. Menaka Guruswamy, and their team’s request was to change the keywords ‘husband and wife’ to ‘spouses’ in the Special Marriage Act. It was discussed at the beginning of day-1 that though they have many concerns, it would be easier for the constitutional bench to decide on this key issue. Once this change is brought in, it will have a snowball effect on all other laws and necessary modifications of them. Other petitioners had a slightly different view that the if the changes mentioned above have to be brought in, they should be accompanied by other essential changes too. The bench decided to hear them out, but with a warning that with many things to consider and with the prolonged hearing, the judgment may be delayed till June-July.
After these arguments, Dr. Singhvi started his argument by drawing attention to the background of the special marriage act. He said that when the Hindu Marriage Act and the Special Marriage Act were introduced, Court and the legislation were under the assumption men and women had different roles to play in the family or society. That is why it has been worded as husband and wife. But today gender roles have been broken and it is discouraged by the court. Thus the wordings husband and wife no longer carry the relevance and the intent of the original law. Thus the constitutional bench should reinterpret it.
On the Day-1 defendants raised a question if the changes can be made by the Supreme Court alone or if it is the jurisdiction of the legislature with the consent of states. Dr. Singhvi in his argument stated that if the bench wants to stitch a whole cloth (i.e. new law) it is left to the discretion of the Court. If certain things have to be enforced, (For example protection against the targeted violence on queers) it can only be done by a statute (new law). CJI responded to that stating “We can’t do that. We are here to ensure that existing statute is in accordance to the provision which constitution guarantees” (in this case the special marriage act). It was agreed by the representative of the petitioners.
Dr. Singhvi continued and asserted that the law doesn’t remain static. Since it doesn’t originate in a vacuum, as the norms and values change, laws too have to be interpreted and recast. Law is the dynamic instrument fashioned by society for the purpose of achieving harmonious adjustment, and human relationships by elimination of tension and conflict. He continued to give examples of why laws need to be amended. He reminded that the original definition of rape according to the law was ‘Non-consensual penile-vaginal penetration’. Later the Verma committee amended the definition in 2012. Until then any other kind of rape, most within the same sex, wasn’t considered as rape. Dr. Singhvi also brought up the issue of marital rape. If the court decides to allow same-sex marriages, to ensure the protection of individuals marital rape shall be criminalised. CJI responded by asserting that there is already a case being discussed in the court on marital rape, whatever is applicable there will be applicable these too. And there is no need to have a separate regulations for it.
Dr. Singhvi concluded by announcing “It would be misunderstanding to say that the queers disrespect the idea of marriage. They are pleased that they respect it. They respect it so deeply that they find it as fulfillment for themselves. Their hope is not to be condemned to loneliness, excluded from civilisation’s oldest institutions. They ask for equal dignity in the eyes of the law. The constitution grants them the right to be equal.” Finally, he spoke about the well-known writer Oscar Wilde who went to prison for declaring himself gay. And the argument halted with the impactful quotation by Oscar Wilde “And alien tears will fill for him pity’s long broken urn. For his mourners will all be outcast men, and outcasts always mourn.”
Later, Ramachandran began his argument on behalf of two petitioners Kajol and Bhavana. He initiated his argument by reading extracts from the judgment by Justice Chinnappa Reddy “True, he is the merest microbe in the mighty organism of the State, a little clog in a giant wheel. But, the glory of our Constitution is that it enables him to a directly approach the highest Court in the land for redress. It is a matter of no little pride and satisfaction to us that he has done so” emphasising the importance of delivering law to the marginal sections of the society. Quoting from Justice Vivian Bose’s judgment, “The Constitution is not for the exclusive benefit of governments and states… it also exists for the common man, for the poor and the humble… for the butcher, the baker and the candlestick maker.” Apparently one of the petitioners Kajol is an assistant in a small bakery. Ramachandran asserted that she is the baker that Justice Vivian Bose talked about. He mentioned that Kajol is a Dalit woman from a remote village in Punjab and Bhavana is an OBC woman from a small town of Haryana. The background of these women should put shame to the erratic assumption made in the union government’s affidavit that queers are urban elites.
He continued, Institution of marriage is not just a gateway to various socio-economic rights, but it is also a societal protection from their own ignorant parental families, especially those who don’t have understanding parents. The petitioners mentioned above had to seek refuge from the Delhi High Court for protection from their own families. So, recognition of their marriage is an important protection for them. He also mentioned that equal marriage rights are a mental health issue. By restricting companionship, society has attempted to bar them the happiness. For which the CJI responded there is a section in the Navtej judgment (Which was passed by CJI himself) that mental health is an important issue and the Supreme Court takes decisions related to mental health very seriously.
Ramachandran made his next argument by starting with the history of marriage laws. India never had a code for marriage for thousands of years. The conventions varied from one section of demography to another. It was the British in India who felt the need for a marriage code and implemented it. That is why the only marriage law brought by early British rule was only applicable to Christians. After Brahma Samaj demanded a secular law, a new law was brought in only for irreligious people in which people had to renounce their religion before marriage. In 1923 it was amended so that marriages can take place under this law by renouncing one’s religion. This acted as a model for the special marriage act of 1954. In both cases, if an individual is married under this, they no longer could be part of Hindu Undivided Family. That law assumed that inter-faith, inter-caste marriages are by default opposed by the families so they no longer will be a part of the previous family. Finally, the court understood that this assumption is folly and brought a change in 1976. After this one could have an inter-faith marriage and still be part of a previous family.
He also brought the attention of the court to a provision of the special marriage act. According to the Special marriage act, 30 days’ notice is required. However, this notice period serves no purpose. It is designed to enable parental families and other nosy bodies to create roadblocks for the marriage. This postponement may cause interventions of violent nature, including kidnapping and murder. CJI stated that this impacts mostly the marginal sections of society. Ramachandran agitated that if equal marriage rights have to be brought in, 30 days’ notice period has to be struck down. And he also added at the end that it has to be struck down even for heterosexual marriages.
A new set of petitioners were represented by Vishwanathan. In his crisp argument, he dealt with two objections. In his opening statements he said, ‘If queer members can be brothers, sisters, brothers-in-law, sisters-in-law, uncle, aunt, friends, they can be companions too if the court permits.’ One of the oppositions to queer relationships is ‘by the nature of the relationship, they can’t procreate. So it can’t be considered as a marriage.’ Vishwanathan questioned if one can deny the matrimonial union because of the inability to procreate. He drew attention to the fact that the law has a lower restriction of age to marry. But the upper restriction doesn’t exist. People who have crossed the age of ability to have children can get married, people who have decided not to have children, and people who can’t have children can marry. So there is no reason to restrict queers from marrying. Honorable CJI added that today many families have childless marriages or single-child marriages. Many young and educated don’t want to have children due to the pressure of modern times. It is their choice. So it is agreeable that heterosexual marriages don’t rely on procreation.
CJI gave a remark that ‘By the abolition of section 377 and decriminalisation of queer relationships does contemplate that therefore people who belong to the same sex could be in a stable, emotional, marriage-like relationships. The moment it is no longer an offense, we have agreed that it qualifies for marriage-like relationships.
Here are some interesting events that happened in the court. CJI while speaking said “I will be trolled for saying this. Today, answer for judges will not be in court but will be in troll pages.” everyone laughed. The court had given a warning to follow the time slot allotted to the lawyers. When the court asked Ramachandran to give more explanation to a point, he joked that “I have to move my car.” Referring to the hourly parking charges, hinting that there is a limited time. Once while arguing one representative insisted that a larger timeslot has to be given because they have something new to say. It was the insights of one of his clients. CJI responded, “I have read that author extensively. I know what is there in the book you are referring to. What do you think we do after the court time? We read and keep ourselves updated.”
Monday will be the fourth day of the hearing. Monday the arguments from the rest of the petitioners will be heard. After that, the opposite side will start their arguments.