The Hon’ble Constitution Bench of the Supreme Court of India continued hearing submissions from the Petitioners regarding marriage equality rights for the LGBTQAI+ community on Tuesday. The Hon’ble Bench presided in a hybrid mode with Hon’ble Mr. Justice Sanjay Kishan Kaul and Hon’ble Mr. Justice Ravindra Bhat presided virtually due to their personal exigencies.
When the batch of matters were called out, Ms. Geeta Luthra, Sr Adv advanced her arguments pertaining to the provisions of Foreign Marriage Act. She submitted that same sex couple who have solemnised a marriage abroad find that it is not recognised in India. She further submitted that marriage is oldest social institution, which grants you invaluable rights in the society. Moreover, she submitted that marriage is not a static concept and rather it is an evolving concept.
Thereafter, Ms. Luthra advanced submissions pertaining to comity of nations and submitted that comity of nations also calls for constitutional comity amongst the nations. She stated that 12 out of the G20 countries including the EU have permitted same sex marriages. Thus, India should not be lagging behind. Mr Anand Grover, Sr Adv followed Ms Luthra and submitted that he would be addressing the Hon’ble Bench on the concept of ‘intimate association’ under the US jurisprudence which reflects in Article 19 (1) (c) of the Constitution of India.
He submitted that the right to intimate association can also be read into Article 21 in addition to privacy, autonomy and dignity. He submitted that the aim ought not to be to strike down the statute. Mr Grover submitted a gender glossary for the aide of the Hon’ble Court for understanding the transgender community.
Thereafter, Ms. Jayna Kothari Sr Adv placed her arguments on behalf of the transgender community and submitted that gender identity has already been recognised in the NALSA case. Everyone has right to vote, right to possess a driving license, right to life and thus it shall also include right to marry. Ms. Kothari further submitted that the right to marriage and the right to family should also be recognised under the right to life guaranteed under Article 21 of the Constitution of India.
She submitted that family goes to the core of our being. Thus, every person which includes transgender persons and intersex persons should have the right to marriage and the right to family. The Hon’ble Constitution Bench resumed after lunch. Dr. Menaka Guruswamy, Sr. Adv. submitted that the Parliament is creature of the constitution and doesn’t enjoy unfettered sovereignty. The supremacy of the Constitution is protected by this Hon’ble Court which acts as is interpreter.
She submitted that the Hon’ble Supreme Court powerof judicial review under Article 32 over legislative action is part of the basic structure of the constitution. Constitutional Courts are empowered to review statutory law to ensure its conformity with constitutional values. Therefore, Courts need not wait for the legislature to enact/amend law to recognise same sex marriage.
Dr. Guruswamy submitted that the provisions of the SMA insofar as they do not recognise same-sex marriages are unconstitutional as being violative of Articles 14, 15, 19, 21 and 25 of the Constitution. Hence to save it from the vice of unconstitutionality, SMA must be read down to recognise same-sex marriages. Thereafter, Mr. Saurabh Kirpal, Sr Adv addressed the Hon’ble Bench on the questions posed by it.
He submitted that in the past, marriage was considered sacrosanct and indissoluble. However, the provision of divorce was incorporated and is allowed. Further, the counter wrongly suggested that same sex marriage will dilute the institution of marriage. He submitted that in fact by allowing same sex marriage, the institution of marriage will expand and be strengthened.
He further submitted not allowing same sex marriage has the effect of promoting lavender marriages which cause misery all around. Mr Kirpal submitted that counsels on behalf of the Petitioners preceding him have presented various methods of arriving at the workability of the SMA by reading up or reading in the terminology as suggested by Mr Rohtagi, Sr Adv i.e., read the word ‘spouse’ in place of husband and wife. He submitted that this Hon’ble Bench is not cast with responsibility to address an overhaul of all related statutes at once but could give some general guidance to the Courts dealing with future litigation.
Mr. Kirpal relied on the decision of Akshay N. Patel v. RBI, 2022 3 SCC 694 which provides a four-prong test i.e., (i) Is the measure in furtherance of a legitimate aim.(ii) Is the measure suitable for achieving such an aim. (iii) Is the measure necessary for achieving the aim. and (iv) Is the measure adequately balanced with the right of the individual; and stated that such exclusion of members of the LGBTQ+ community from the institution of marriage does not satisfy the four prong test. He further submitted that by not recognising the same sex marriage, we are pushing competent homosexuals to countries where such rights are recognised.
This results in economic cost to the country, as it affects the GDP of India. Thereafter, Ms. Vrinda Grover, Adv. submitted that all persons should have the right to a chosen family. The arguments for the Petitioners have been lead by Mr. Mukul Rohatgi, Sr. Adv. assisted by Mr. Saurabh Kirpal, Ld. Sr. Adv., Dr. Maneka Guruswamy, Ld Sr. Adv., Ms. Arundhati Katju, Ld. Advocate, and a team of advocates from Karanjawala & Co., Advocates. Mr. Raju Ramachandran, Mr. Vishwanathan, Mr. Anand Grover, Ms. Jayna Kothari, Ms Geeta Luthra, Ms. Vrinda Grover, Ld Sr Advocates have addressed arguments on behalf of the Petitioners in various petitions.
The Ld. Solicitor General, Ms. Aishwarya Bhati, Ld. ASG appear on behalf of Union.
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