Day- 4 of the Constitutional bench was launched with the argument by Geeta Luthra. Luthra focused on the provisions of the Foreign Marriage Act. She spoke about the problems faced by the petitioner she represented. She read out the extracts from the Foreign Marriage Act – “A marriage between parties one of whom at least is a citizen of India may be solemnised under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:— (a) neither party has a spouse living, (b) neither party is an idiot or a lunatic, (c) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage, and (d) the parties are not within the degrees of prohibited relationship” And in the subsection 11 it is mentioned, “Marriage not to be in contravention of local laws”. It is noticeable that unlike other marriage acts in India this act does not mention ‘Husband and Wife’ but it refers to ‘parties’. The petitioner of the Luthra has married a person of the same sex in the US where the queer marriage is legal. The petitioner lives in the U.S. and it has been registered there. However, in India, it is not recognised and creates a lot of trouble, legal or otherwise. The petitioner was also mistreated by the authorities when she requested to register the marriage under the foreign marriage act.
According to Ms. Luthra, people should be allowed to register under Foreign Marriage Act even without any changes to the law because the law as written is gender-neutral and does not specify that the parties have to be the opposite sex.
Luthra continued to speak about the global acceptance of queer marriage. 34 countries recognise same-sex/ gender non-confirming marriages. And India has to be progressive enough to join them. She asserted that marriage is not a static concept but an evolving one. Inter-racial marriages were once banned in the United States. Inter-caste, inter-faith marriages were not recognised in India for a long time. Thus we need to amend the idea of marriage so that the people will not be left behind. She quoted the statement by J. S. Mill “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” She asserted “We might be the minority but that doesn’t mean the majority can take away our rights.” The constitutional committee made sure that even one minority in India wouldn’t be left behind. The foreign marriage act is not just a matter of social recognition, but also the Visa, passport, right to live in India, inheritance, etc. The spouse of the petitioner mentioned above was not allowed to live in India and was able to come only with a traveling Visa. Despite the marriage between the two, the spouse wasn’t recognised as the partner by the government. As an answer to the opposition that the case has to be decided by the Parliament, not the court, she spoke that the constitutional responsibility of the court is to protect part – 3 of the constitution. (Fundamental rights) Finally, she described the provision provided by the government of the Netherlands to their citizens called registered partnership which has most of the provisions of marriage. If not marriage, at least registered partnership has to be available to the queers of India.
Vishwanathan continued to speak about the Foreign Marriage Act and his petitioner’s situation similar to the case mentioned by Luthra. He later spoke about the literature available on non-binary relationships referred to by NLSA judgment (judgment on the rights of transgender). The popular story from Ramayana, (How Rama blesses transgender to be the bringers of good fortune) is one of the oldest stories available in reference to gender non-binary. There are several references to non-binary relationships in the various text of the old. Vishwanathan claimed that India by large understood the situation. He also mentioned a very interesting view of it. According to him, Hindu and Buddhist texts use physical parameters for non-binary, whereas Jain scriptures use psychological parameters. As the Jains dealt with the idea of psychological sex, they went further deep into understanding non-binary.
Vishwanathan answering to if Parliament should decide queer marriages to be allowed produced a document that showcased that in the last 5 years of decriminalisation, no positive response has been given by the legislation. He produced another document of the data on same-sex couples. Most same-sex couples run away from home due to resistance from the family. And according to data, many of them are from rural areas. And they hail to the cities for protection. Considering this, ‘Queer culture’ if it appears mostly in urban areas, can’t be evidence for it being urban. He ended the argument with a poem by Kahlil Gibran “Then Almitra spoke again and said, and what of Marriage master? And he answered by saying: You were born together, and together you shall be forevermore. You shall be together when the white wings of death scatter your days. Ay, you shall be together even in the silent memory of God. But let there be spaces in your togetherness, and let the winds of the heavens dance between you. Love one another, but make not a bond of love: let it rather be a moving sea between the shores of your souls. Fill each other’s cup but drink not from one cup. Give one another of your bread but eat not from the same loaf. Sing and dance together and be joyous, but let each one of you be alone.”
Jayna Kothari representing popular activist Akkai Padmashali started her argument by pointing out the falsity of the title of the case (Same-sex marriage rights). She stated that marriage should be equal to all irrespective of sex, creed, and otherwise. Though there is a provision for transgender to get married, it is a long shot. A person who identified as male at birth has to get registered as transgender after the affirmation surgery, later that person has to identify as a woman if they have to marry a man. This was allowed because of the NLSA judgment. But in reality, it is very difficult to execute. She continued by saying Article 21 should be understood as the ‘right to family’ which inherently means the right to marriage. Besides the ‘Yogyakarta principles’ which asserted queer rights have been recognised by the Supreme Court in the NLSA case this equal marriage rights has to be executed by the Supreme Court.
Menaka Guruswami presented 5 submissions to the court which unfurled an intriguing debate in the Court.
1. She said “On the contrary to what Union Government has advanced in its counter and the opposition, India’s Parliamentary form of Government that we adopt as ‘we the people when the constitution was adopted. Unlike England, it is a constrained parliamentary system.” Indian parliament is constrained by the constitution interpreted by the Supreme Court. That is the separation of power formula that ‘we the people’ give ourselves. So, to say this is a matter to the parliament and shall not be decided by the Court is not just unknown to the Indian Parliamentary form which is constrained by the constitution, but in fact, seeks to impose a British parliamentary model which has no place in this jurisdiction.
2. Judicial Review is part of the basic structure and it is well established in the Keshavananda case. Dr. Ambedkar in the constituent assembly debate says “Article 32 (the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been unduly deprived.) is the soul of Indian Constitution. 19 petitioners of this case, speaking for millions of Indians, that our Article 32 rights are violated. Most importantly, the preamble that ‘we the people’ give ourselves states “We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens”. The securing part here is Article 32. She continued “So the Union Government can’t say we (queer) can’t come to court and it is a matter for parliament to decide.” because of Article 32. The right to judicial review is part of the basic structure of the Constitution. And the basic structure of the Constitution can’t be altered at any cost. She asserted “We celebrate 50 years of recognition of the basic structure. And these 5 decades belong to LGBTQ+ people also.”
3. Union Government in its counter said ‘Government has a legitimate state interest in proscribing this nature of marriage’. The court in the Puttuswami case (the case which introduced the right to privacy) interpreted ‘legitimate state interest’ as specifically pertaining to national security, crime, innovation, and dissipation. None of these applies to any of the petitions demanding equal rights. So Government can’t dodge saying it has a legitimate state interest.
4. Already on the day-1 while introducing, it was mentioned that the marriage is a ‘bouquet of rights’. Premised understanding of Gratuity, Provident Fund, and Pension all depend on the spousal relationship created by marriage. So it is not just a matter of emotional support, but also about daily life.
5. Marriage is a matter of conscience under Article 25 of the Constitution. (guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens. The above-mentioned freedoms are subject to public order, health, and morality.) So the
Court has a responsibility to uphold the rights.
Dr. Guruswami also gave two documents in support of the arguments. The first was a DCPCR study. DCPCR (Delhi Commission for Protection of Child Rights) is a government statutory body. The study mentioned above is the only study based in India with 5,800 queer respondents. The study deal with the impact of the Navtej case (decriminalisation of Homosexuality) and how marriage equality would impact LGBTQ+ people. Second, is, the Indian Psychiatric Society’s released statement commending marriage equality.
In response to Dr. Guruswami’s arguments, the CGI responded that the canvas covered by petitioners also falls within the domain of Parliament is undisputed. The legislature has the power to bring laws regarding these petitions. And it is part of the concurrent list. So there is no need to take it far to the extent to say Government is going towards the British Parliamentary system. However, since it hasn’t brought any laws so far, what court can do with the power it has? Is the question that is to be contemplated. Where does the court really exercise jurisdiction?
Note: Courts can’t make law. At the most, it can give a framework to legislation to form a law.
Dr. Guruswami answered, where there has been legislation (in this case Special Marriage Act) there are numerous instances where the court has interfered. And fundamental rights can’t be trampled with. And if the court can cast a positive obligation on the legislature to make a law, (e.g. right to privacy) it has to be done by the legislation.
Justice Ravindra intervened. In certain things, the court can’t force the legislature to make law. When casting a positive obligation, there are restrictions. Article 17 (Abolition of Untouchability) for example, though it is a fundamental right, which is the jurisdiction of the Supreme Court, since it deals with an offense, that depends on the lawmakers (legislation). It is left to the lawmakers to lay out conditions in which offense can be conducted. When that was not done by the parliament, the Court asked parliament to make a law casting positive obligation. We are almost in that situation now, but not with such a wide right. In this case, since marriage is not a primary fundamental right in the Constitution, it is a derivative right as of now. This derivation is based on the judgments of the courts starting with decriminalization, the general right to privacy, etc. Casting a positive obligation is possible.
CJI responded. “When the court gave the verdict on Puttuswami, concluding part of the judgment said that it would expect that parliament should come out with draft bill on privacy.” The court can lay out a framework, which can be fleshed out in the parliament. The question is how far can the court go? In this case, all the submissions will have some bearing on how we deal with personal law. Things that come under personal law like adoption, succession, and intestacy are connected to Special Marriage Act too.
Dr Guruswami answered, “My first constitutional rights case ‘Right to Education’ which initiated the addition of Article 21A to the constitution, CJI of that time mentioned that the court have been actively involved in implementing the right even before the enactment of the law. The supreme court has been a guiding force not just for LGBTQ+ rights, but also many facets of fundamental rights.”
She continued, “We aren’t asking anything special today. We only ask for a workable interpretation of the special marriage act. Various councils of petitioners of this case have presented workability tables with various options.” Reading ‘spouse’ instead of ‘husband and wife’ is an option, if the definition of marriage could be expanded, and reading in a constitutional, tenable technique is another option. We only ask for a constitutionally tenable interpretation that considers Puttuswami, Navtej, and Keshavanada judgment. For our demands are also intertwined with the basic structure of the Constitution. We are part of ‘we the people’. We are citizens of their country. The basic structure also belongs to us. We have the right to judicial review and parliament cannot be the reason to exclude us from this gamut of our constitution.”
She read an extract from Puttuswami judgment ‘The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favorably regarded by majoritarian opinion.’ When Dr. Ambedkar was confronted with the question if Indian society was ready for the Hindu Code, and how would majoritarians feel? He said, “It is not the question of numbers, it is not the question of majorities and minorities. It is the question of conscience.” By insulating fundamental rights from the whims and vagaries of the majority and minorities, this court has created a constitutional principle that Dr. Ambedkar called conscience, the court called ‘insulating their exercise from the disdain of the majority.’
CJI posed a question, “Now the question is can we stop at Special Marriage Act? What if two Hindu spouses get married and one dies and the other claims for entitlement? This will have to be dealt with by personal law. Dr. Guruswami answered; “We are already protected by law in principle through decriminalisation of section 377. But the principle is not enough to lead life.” Therefore, the declaration of the right is the first step. The second step will be an illustrative list of provisions required like the list we have provided. She added “Workable model has been provided by us too. Once these are done, the rest of the things will follow.”
There was a short discussion by Justice Bhat, CJI, and Dr. Guruswami about the feasibility of changing only the Special Marriage Act. Both Justice Bhat and CJI opined the situation is not as simple as changing things in only one law. Considering the marital benefits things like the provident fund act, pension act, etc. have to be changed too. Even if few things are unaltered, the court will receive thousands of cases that they are being excluded.
Dr. Guruswami replied, with examples of the gratuity act and provident fund act. Both mention similar to ‘in case of death the fund has to go to the surviving spouse.’ Due to the gender neutrality of the language of acts, the technical leap that needs to be made is not much. It is only about who can be married. Once that becomes clear, then rest is easy. Most laws mention words like family member or spouse. The reading of who can marry is enough to solve these problems.
Justice Ravindra Bhat raised a question. Special Marriage Act itself mentions that a Hindu/ Sikh/ Jain or Buddhist can go back to their religion after the dismissal of the spouse. When Special Marriage Act itself mentions this, the issue of personal laws can’t be dodged. (Let me try to explain the meaning of the question. The entire debate of 4 days is about the provisions of the Special marriage act, which is a civil law. Hindu marriage act etc. which involves religion are considered as personal laws.
Technically, the court can’t change all laws in one bench. And the ways to deal with the personal laws are different from civil laws. So petitions are only dealing with a secular law, i.e. Special Marriage Act. But the argument of Justice Bhat is that personal laws can’t be excluded)
Dr. Guruswami responded, “There is a need to have internal coherence. If the court comes up with the declaration of the right and illustrations, most civil laws will be covered by that declaration.”
There will be some gaps, but they will follow. That is the intention of the special marriage act too. It is one law for all.
CJI gave an explanation for it. He mentioned that before the advent of personal law with the introduction of the Hindu Code Bill, marriage, adoption, succession, etc. were governed by local customs which were existing. The Special Marriage Act was an exception to be neutral to religion. But if the same-sex marriage provision is only allowed for Special Marriage Act, the court can’t help people who want to get married and continue to follow the same religion. Even the Special Marriage Act has some influence on personal law. Dr. Guruswami answered, “Personal laws have to follow. Special Marriage Act will be a neutral form of same-sex marriage for a while. We are suggesting a declaration of rights and a broad definition. Once this is done, later it can be applied to other laws. Justice Ravindra Bhat replied, “Special Marriage Act seems neutral might be your opinion. But there might be queer who wants to continue their way of life and their traditions. Is it possible to ask them to leave their religion? If we secularize marriage, we are in denial of their right.”
CJI asserted “Judicial review can’t be under-inclusive. How we will have to craft such a solution which is applicable to everyone, there is a lot of thinking to be done.” Dr. Guruswami agreed by responding “The court has a burden. It is a legal and constitutional journey” CJI asked Dr. Guruswami to reflect on it and respond later with clarity.
The next advocate was Kripal. Kripal tried to answer the question of workability. According to him, if this case gets solved and the provisions are given under Special Marriage Act, later when there is a discussion on the Hindu Marriage Act in front of the court, this case can be used to guide the provisions there. It is true that the court can’t make rules on everything. Parliament has power and jurisdiction that in one go to have a complete understanding. That doesn’t mean that when there is an infringement of fundamental rights, the court can’t interfere. If queer can’t be looked at as equal, it is a pure violation of Article 14. (The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India) Usually, when a discriminatory law is found, the court strike down that law. Striking Special Marriage Act helps no one, so we need not do that. And in certain circumstances, under-inclusion is permitted. He asked the court “We request you to read in with interpretive devices so that you recognize the unconstitutionality of the law.”
‘We can’t give you everything, so will give you nothing’ can’t be the attitude of the court when an act is in clear infringement of Article 14. We hope all change will be done one day. But the court can go one step at a time. The laws are not decided based on original intent. Makers of the Special Marriage Act may have understood ‘persons’ as heterosexual persons. But today’s understanding of the Constitution will make it void. There is no point in saying ‘you have a right. But no remedy.’ The court should recognise the right of queer people to marry. Once this right is recognised, that right will have consequences. Having found the right, there will be a constitutional obligation on this court to act.
Vrinda Grover’s argument followed it. Grover represented petitioners who are activists. She explained about the family violence faced by queer. And in most cases, marginal communities are most affected. Marriage is a legal shield against natal violence. She stated that ‘hair and clothing are identity markers. Even the act of cutting or keeping the hair can result in house arrest, no schooling, and even corrective rape.’ Due to the family pressure sometimes they get into marriage at a minor age. She also illustrated a study that explained the problem faced by transgender individuals during the Covid lockdown. Many had to go to their parental family where they were victims of violence and also put to forced conversion therapy which is illegal. This is what happens when there are no other social formations that provide care and support, i.e. marriage.
Grover’s demands were simple. She demanded to include transgender into Special Marriage Act not just same-sex. Secondly, she was assertive about striking down the 30-day notice mandated by Special Marriage Act.
The day concluded with the argument by Grover. There were a few interesting incidents that took place. CJI while addressing Dr. Menaka Guruswami, called her Ms. Guruswami. He immediately corrected it with Dr. Guruswami. There were a few appreciation posts on social for CJI stressing the importance of using the right titles. One of the judges tested positive for Covid a few days back. So two of the judges decided to attend the session virtually. When judges on the bench were discussing with themselves, the other two judges were clueless about what were they discussing. CJI immediately responded that he misses having them for the discussion. Dr. Guruswami, when she began her argument just after lunch she said “That was the most nerve-wracking lunch of my life. I was thinking about how do I sum up the conversation that I have contemplated having in this court for decades perhaps many decades of our life.”
Dr. Menaka Guruswami’s partner Arundhati Katju is also a lawyer in this case. They have been actively advocating Queer rights at least for two decades. Imaginably, it would be an emotional moment to witness Dr. Guruswami arguing for the case.
Day 5 to be equally divided between wrapping up arguments and opposition
Half of the Day-5 of the session will be dedicated to wrapping the argument for petitioners. And the other half will be allotted to the opposition. The fourth day of the Constitution bench on equal marriage rights opened with the reference to Kesavananda Bharati case. The court was displeased that one of the advocates added the entire judgment of that case to the notes of this case. Court decided it was unnecessary as it tolls on the resources. However, I would like to take this opportunity to speak about the relevance of the case. The 24th of April marks the 50th anniversary of the landmark judgment made by the 13 members bench of the Supreme Court on the Right to sustain the basic structure of the Constitution. The court in the decision asserted its right to strike down amendments to the Constitution that were in violation of the fundamental architecture of the constitution. In the verdict, the court held that while the Parliament has ‘wide’ powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution. As additional information, I would like to add that two of the judges of the bench were Justice K. S. Hedge, father of N..Santosh Hegde, and Justice Y. V. Chandrachud, father of D. Y. Chandrachud.