Dwivedi continued his argument at beginning of the day-8. He argued that the issue of marriage equality is not a matter for judiciary review at all. It is more like an advisory jurisdiction which court has. Moreover, Article 50 of the Constitution states “Separation of judiciary from executive. The State shall take steps to separate the judiciary from the executive in the public services of the State”. The separation of power mentioned here is between Judiciary and the Executive. But it doesn’t state anything about the Parliament. So the Judiciary may not do what Parliament has got the power to do. CJI replied, “Until recently there was no strict separation between the executive and the judicial functions, especially in the district judiciary. The idea was to ensure that the district magistrates for instance don’t exercise the power of a civil court.”
He also provided examples of many cases where the court decided that important decisions has to be done by the parliament. He raised the question if it is really a fundamental right to recognise same-sex marriage.
Chief Justice asked Dwivedi if anyone has a fundamental right to marry according to the submissions made by him.
Justice Ravindra Bhat refined the question by asking ‘Any citizen of the country for the court, society and polity has placed the individual at that highest pinnacle. We have carved out and discovered so many rights like the right to personhood, the right to choice, the right of being left alone, the right to privacy, and the right to autonomy. The right to dignity is part of our preamble promise. With all this, the core question is does a citizen have a right to marry? Yes, it is true that there is no unqualified right (rights without restrictions) right to free speech, the right to association, and even the right to life is not an unqualified right. If that is the premise, we should ask what is a right. Does the right to life include the right to marry?’
Dwivedi answered ‘Heterosexual couples have a right to marry in accordance with their customs, personal law, and religion. And that is their foundation of the right.
CJI asked for clarification if according to the advocate, there is a right to marry under the Constitution but that right is only confined to heterosexual couples. And Dwivedi agreed.
Justice Ravindra Bhat responded, “Rewind 50 years ago, intercaste marriages were not permitted, if we go back further sapinda marriages were not permitted, inter-faith marriage were unheard of. The content of marriage has changed. So what was the fundamental right to marriage in 1924?.”
Dwivedi argued that the above changes were brought in by legislation.
Justice Hima Kohli said that the issue is not legislation. According to the advocate, it is the culture, customs, and religion which decide the matrimonial setup. If so, the question is if the Constitution has recognized the right to marry.
Dwivedi responded, “The Constitution gives a fundamental right to form relations, associations that can be regulated. Now what we call marriage has over the course of years resulted in a social institution. It is a long period of time since this institution of marriage has emerged.”
Justice Hima Kohli asked for clarification, “Is it your argument that even prior to the Constitution, there were customs, ceremonies etc. and once the Constitution came in, the right marriage was recognised?” Dwivedi agreed.
There was a prolonged debate between CJI, Justice Ravindra Bhat and Dwivedi if the fundamental right to marriage recognisable in the Constitution is restricted to heterosexual couples.
Dwivedi said, “Globally there are a large number of people who look are marriage as a contract, and they say marriage is a fluid concept.” He continued to argue that if we argue that marriage is a fluid concept, then the question will be raised on the validity of prohibited relationships including incest. The core content of the argument is that the coming together of a man and a woman as commanded by the customs is marriage. And procreation is an intrinsic part of the marriage. The nation cannot survive if people don’t procreate. All religions though they disagree with each other on many grounds, agree that homosexuality is a sin. So any changes to the concept of marriage have to be done by the parliament.
CJI then raised an important issue. He said, “Even if we consider what you said is true, it is open to the government to exercise its legitimate interest, either to recognise a broader notion of marriage which goes beyond heterosexuality or to confine it to heterosexuality. If the government decides on it, it would promote vital societal interests such as social acceptability or the stability of the social order. Even if we consider that there may be an alternative formulation. Apart from the element of heterosexuality, there may be other elements of that associational relationship which must find protection within our law. That is if we consider that marriage is only restricted to heterosexuals. But it is a very layered argument. One is the constitutional recognition of the components of an associational relationship without marriage. Second, is administrative-civic incidents of such relationships. Three is legislative recognition. Legislative recognition, Legislative regulation, and Legislative acceptance undoubtedly have to come from the parliament. Administrative or civic consequences of a relationship can be done by the government and as the Solicitor General said, the government has taken a first step by saying that the government is constituting a committee chaired by the cabinet secretary. But the fundamental issue is how you give meaning to the content of constitutional values. So even assuming that we accept your submission on the legitimacy of marriage as a social institution, stability of the order, interest of the state in protecting the concept of marriage as a heterosexual relationship, and it is parliament which should decide it. Equally, in this area, some element of constitutional jurisprudence is left for the court to evolve.”
Justice Ravindra Bhat added, “we are in a constitutional society and we are approaching our 75th anniversary. The court is entitled to a declaration as an interpreter of the Constitution. Beyond the declaration, it can’t say much which it can’t implement. Has common law seeped into our bones to the extent that everything we say needs to be executed by legislative proceedings? Is it not sufficient that the court says that this is the state of affairs?”
Dwivedi replied that they believe that the Court can decide only something that can be executed concretely. CJI gave the example of the Puttuswami case where the verdict was the declaration of the Right to privacy and stated that the court was conscious of the fact that the implementation can’t be done by the court. Justice P. Narasimha added that the recognition of the existence of a right, the court can do that despite knowing that the execution is not possible without the involvement of the legislature.
Kapil Sibal argued after Dwivedi. He started by saying that he worries that the council of petitioners said that the Parliament is not going to do anything about it. And it is a dangerous proposition. (Sibal is a member of Rajya Sabha). Any law which pursuant to a tectonic shift in societal values, requires public discourse. Therefore a declaration by itself on the premise that parliament is most likely not to pass a law is a wrong step forward. A declaration by the court will close the debate in parliament as the parliament will have no scope for the debate. So we need to be cautious. He argued that sexual identity is different from the sexual union and all the laws and case judgements like NLSA, Puttuswami, Johar etc. deal with sexual identity but not sexual union.
Kapil Sibal defined marriage as a union of two persons. It is a sociological phenomenon which deals thus far with heterosexuality. There are two elements of recognition of marriage. That is recognition within (law) and recognition without (social). That is, even in the absence of a law, the union is still recognised by the community. Thus far it applied to only heterosexual couples. The sexual union between queers is still a union, and they are ascriptive. We are trying to give a name to that union. How can anyone stop them from considering it marriage? If two people decide that they live together and call it a marriage, people can’t say they are wrong. But the problem is recognition by law.
According to him no part of the constitution says it is part of someone’s right to be and to live as one pleases without interference from the outside world. So recognition without social acceptance would amount to an imposition on society.
The right to union given by the Constitution is inalienable. It applies to queers also. But the name of that union or equating it to a heterosexual union is not a constitutional issue. He argued that the queers have to be given a special status unlike the heterosexuals so that a separate law can be created. According to him, there is a significant difference between the Ghaidan case (a British court case which declared the right to same-sex marriage) and the Obergefell case (an American case which declared a similar right). Before the Obergefell judgement, gay people were not entitled to military service or government service, they were discriminated against regarding immigration. The situation in India is different. Anyone can enter government service. U.S. court was dealing with a far more illiberal environment.
CJI replied, ‘Even in India, an individual in their capacity is entitled to adopt a child. But if an individual is in a same-sex relationship, their right to adopt as a single individual is denied.’
He agreed that it is right. And a comprehensive law is required to make sure that all the problems are solved. Saying that the parliament won’t do that so the court has to provide a declaration won’t solve any problems. He ended his argument by stating, “This moment should be celebrated that the court is at least dealing with the reality of the situation. But that celebration must not result in an overreach. The court should set systems in place for the state to move forward. If we don’t move forward, many of these people will be discriminated against.”
After Kapil, Datar started to argue. He took examples of major cases quoted by the council and explained that in all the judgements related to queers the word ‘union’ doesn’t mean marriage. He also argued that the rephrasing of an act (in this case Special Marriage Act) is only done when the wordings are ambiguous. But the words and their meanings are very clear in the Special Marriage Act. Changing them will be a judicial retrofitting which is adding a new component to old machinery. Queer rights are new rights recognized by the Court and changing old law to match with it may not be the right thing to do. So changing them may not be right. The day ended with the closure of Mr. Datar’s argument.
The court also witnessed a few amusing incidents. When the bench was asking a series of questions to Dwivedi, CJI said that these questions are not just for you, but also for the other side.
Dwivedi laughed and said, “After all this time in court, I know how you function.” Later Justice Hima Kohli said that because of the case, there is a debate which has been initiated in society. And CJI added that the live streaming has helped to make it popular by a lot and now it has reached to the homes and hearts of the common citizens. Mr. Kapil Sibal added that, since the court proceedings are in English, with the help of speech to text the live feed can have a translation of it in different languages for better reach. CJI agreed and said that steps are taken already to execute that. When Sibal pulled out papers before he started arguing, CJI asked him where his digital tablet is. He then put aside the papers and opened a digital tablet and said, I am going to honour my commitment made to the court. He stated “I am trying to learn about gadgets on a daily basis” The court witnessed a rare instance where a judge asked an advocate for information about the law. Justice P Narasimha asked Sibal if a declaration by the court can be overruled by the parliament. And Sibal replied that they can’t.