After day-1 of dramatic events, day-2 continued with the argument by Mukul Rohatgi. It was expected that the defendants would present their argument today. However, on the contrary, major petitioner Mukul and the team argued for the first one and a half hour. And rest of the time was allotted to another petitioner Dr. Abhishek Singhvi who had slightly different demands. The Constitutional bench evaluated if it is necessary to give an opportunity for Dr. Singhvi while Mukul’s team had already made arguments supporting equal rights. Since the earlier petition only covered the change of term from the Special Marriage Act ‘husband and wife’ to ‘spouses’, the scope of the petition and the demand were limited. Whereas Dr. Singhvi’s argument focused on power struggles, social problems, and remedies.
Mukul explained the history of law barring same-sex individuals from marrying, the historical relevance of acceptance of queer, the legal protection already given to the rights of queer, and the deconstruction of the hetronormative framework. Mukul called the criminalisation of homosexuality a discriminatory law resulted from the colonial mindset. It was Thomas Macaulay who introduced Section 377 based on Victorian standards. The fact that Independent India continued the law without any debate is a sign of colonial consciousness. There are various records of queer relationships in ancient Indian scriptures, Hindu temples, Mughal rule, etc. Discrediting thousands of years of tradition and claiming two hundred years of British rule as Indian tradition is a sheer violation of Indian identity. British morality stickled to the Indian psyche because the Britishers made the law and those laws were imposed.
He also referred to Justice K. S. Puttaswamy’s case which resulted in the historical verdict of the Supreme Court that introduced the right to privacy. Quoting from the text of the judgment “Right to privacy is a shield against the forced homogeneity”, he continued to state that the shield must be strengthened to avoid being traumatized or stigmatised only because one doesn’t conform to the heteronormal majority. If the Supreme Court decides to make the changes to the Special Marriage Act, consequential effects strengthen the gender and sexual minorities.
Mukul while countering the defendants’ argument that society shall decide if it is ready for the change, he asserted that deconstruction of the hetronormative framework is essential for the Indian society. Society wasn’t ready when the Supreme Court introduced the Widow Remarriage Act. But the Supreme Court initiated it despite the opposition. As the Supreme Court has an ethical responsibility to uphold the rights of the people. He argued that Supreme Court has the moral authority to bring change in the public mindset by amending the law.
Arundati Katju argued, (Mr. Mukul spoke) “Our parents have accepted us, though they are from an older generation. Our parents want us to have a family, which is barred by law as of now.” She continued that the parents of queer population or ostracised too for having queer children. So this law is not just about the queer population, but also about the dignity of the parents. Mukul and Katju presented the judgments from the Nepal Court.
Queer marriage is not an urban elitist concept as it is claimed by the Union Government. Queers can be found in the remotest villages of India.
Continuing, they presented that marriage is the oldest institution of human civilisation. Queer only asks for equal dignity in eyes of law. And if Supreme Court says we need to wait for Legislation to give rights, Supreme Court will fail as a guardian of fundamental rights. Mukul stated that “In the march of social progress, India can’t be left behind”. Thus these changes are vital.
After the argument by Mukul, Dr. Abhishek Singhvi representing a different set of petitioners provided his argument. His argument was majorly on 3 aspects.
1. Reinterpretation of the Special Marriage Act. And launching a constitutional complaint based on discriminatory exclusion.
2. Declaration of objection to the discriminatory regime.
3. Relief or remedies expected to protect queers from being discriminated against.
Dr. Singhvi opened his argument by appreciating the decision of repealing Section 377. He stated “However, little things are done, vastly undone” to protect the rights of the queers. The Court should remove the next brick in discrimination by allowing marriages irrespective of gender/sex. He requested courts to open the socially, culturally engrained concept of marriage to all. Just like interfaith and intercaste marriages, the government should recognise same-sex marriages too though it is socially considered unconventional. Marriage provides social validation, security, and financial support. And if it is applicable to heterosexuals, it should be applicable to otherwise too. And it is a gateway for tax benefits, adoption, and several other perks attached to marriage. Dr. Singhvi accused the government of being discriminatory towards the queer. And it can be solved only through the intervention of the court. Finally, he proposed remedies for the mistreatment and discrimination against the queer. But since he only quoted them from the report submitted to the court, it is unclear what they are.
Some of the major remarks done by CJI Chandrachud are noticeable. When Dr. Singhvi spoke about adoption, CJI told that when a single individual is able to legally adopt a child, queer couples should be allowed to adopt legally too. Later CJI stated “State can’t discriminate individuals based on characteristics of which person has no control. Sexual orientation being an innate characteristic can’t be casually labeled as elitist or urban. Something innate can’t have a class bias. Coming out of the closet might be more in urban areas, but it has nothing to do with the nature of it. Union Government has no data to claim that same-sex relationship is an urban concept.
On a lighter note, the hearing led to a few interesting moments. Both Dr. Singhvi and Kapil Sibal are Rajya Sabha members appointed by Congress. But in this case, they are on the opposite sides. When Dr. Singhvi started talking, Kapil Sibal playfully accused him of stealing his time. Later when Dr. Singhvi accused the BJP Government of being hostile towards the queer public, the court asked for evidence. Dr. Singhvi corrected himself that it is not the Government but it is different ‘vigilante groups’ that cause the trouble, people present there shared a smile.
Day-2 of the hearing led to very serious, yet interesting debates.
Day-3 will start with the closure of Dr. Singhvi’s argument and the defendants argue on behalf Union Government, states, Jamath, and other organisations opposing the Court amending the law.