Same Sex Marriage| Indian Society Is In Tune With Evolution, Not Cultural Revolution Through Adjudication: Senior Advocate Rakesh Dwivedi

After Solicitor General Tushar Mehta and Attorney General R. Venkataramani finished their arguments in the same sex marriage case before the Constitution Bench, Senior Advocate Rakesh Dwivedi commenced his arguments today on behalf of the State of Madhya Pradesh. 

While Chief Justice DY Chandrachud, Justice S Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha were sitting in Court, Justice SK Kaul participated virtually in the hearing.

Replacing 'Husband' and 'Wife' with 'Spouse' affects dignity of heterosexual couples 

Responding to the argument of the petitioners that the words "husband" or "wife" in the Special Marriage Act can be read as "spouse", the Senior Advocate read Section 12 of the Act and submitted, “I, (A), take the (B), to be my lawful wife (or husband)- so a husband-wife relationship. The contention is that it be substituted by spouse, is it a simple substitution? You set up your claim based on choice, autonomy, dignity, fraternity and all those. Is not my lords there a dignity for the heterosexuals? Because you are asked to substitute this by spouse", he further added.

"How is the dignity of heterosexuals affected by this", to that CJI asked.

"Because the relationship of husband and wife is a meaningful relationship since antiquity. Husband, wife, pati, patni..”, Dwivedi said in response.

CJI then, with a disclaimer that he was testing the argument, said, "Do you mean to say that the dignity of a relationship between a heterosexual husband and wife would be affected by granting recognition to a same-sex couple?"

“What you are saying is that by using the word spouse, it diminishes the dignity of the husband or the wife?”, Justice Bhat further asked.

Dwivedi then put forth a question, "When we say that I take you as a husband or I take you as a wife, you want us to say that I take you as a spouse?"

"That is not your strongest point", said CJI smiling. “It is semantics”, Justice Bhat added.

"Then every time you go to a Registrar's office, you say I take you as a spouse?", said Dwivedi in response.

"It does not preclude you from being treated as husband and wife", Justice Bhat opined.

"But why change it? Why alter it?", Dwivedi asked.

Then CJI said, "When I say I take you as a spouse, it is also consistent with- I take you as a spouse who is my wife or I take you as a spouse who is my husband".

Then Dwivedi pointed out that though the word spouse is flexible when it is used as a substitute for husband or wife, it is not in the sense in which it is used in Section 4 of the Special Marriage Act, which is meant for heterosexual marriage regulation. "But now when my lords will make all these substitutions then this Act will turn into an Act which covers other relationships also”, he said.

The Bench said that it is a different argument which has already been made, which is an acceptable one. 

Indian society is more in tune with evolution, not cultural revolution

"While claiming dignity, you should not inflict indignity, whether you look at it traditionally, culturally, socially, historically. These are very valuable things. It may not have no meaning for the people who don’t attach value to it…Don’t dilute the status...Don't create a boil in the society. In Sabrimala, the Constitutional Bench took a view and there was a virtual counter-revolution on the ground and this Court backtracked and referred the matter to a 9-judges, and there was a stay and we are where we were...", Dwivedi added.

"There are many matters of social reforms which may appear to be constitutionally this side or that side but when we try to inter…preparedness of the society to accept that change is also extremely important. Let us not rush. Indian society is always more in tune with evolution, not cultural revolution. And that too a request for cultural revolution through adjudication. China tried- failed, Russia tried- failed, they all had to back-track. 70 years of Russian revolution and we are back my lords, Communism gone", Dwivedi argued. 

On that, the CJI responded, “Except with one difference Mr. Dwivedi, we have a Constitution, with an enforceable chapter on Fundamental Rights".

Dwivedi then submitted, "But fundamental rights don’t operate in the vacuum, they are all meant for ultimately to operate in the context of a society, given society. And that is why I am averse when some of us try to cross the seas .. and bring Obergefell here, Forray here".

“Let us be very clear, the existence of same sex couples is not something which has been imported from some ocean ...., it was as much part of our society”, CJI commented.

Dignity has no relevance     

"It was part of the society, that is another aspect which is not looked at. That is that even though it was there in the society, at no point of time there was any demand for recognition of marriage for them. That is also an equally important aspect. They were there, they were given respect, they had dignity, but marriage by itself is not a matter of dignity. If that were so, then people who are not married will not have no dignity my lords. It can’t be that. People who become widow and widowers and then they are not married anymore, so they lose dignity upon becoming a widow”, Dwivedi submitted.

To that, CJI said in response said that the argument is not that people who are single lack dignity or that marriage is a source of dignity, it is about choice.

“Therefore, dignity has no relevance. May be equality, may be choice. You can choose your partner, live with the partner, but if you want to marry…then you are invoking a particular social institution, which is existing in the society. Otherwise, who is stopping them from forming any kind of association, you marry. There is no law. I would be very happy if all these laws are taken away, but all these are with an there to protect the interest of women and children because of the command of Article 15(3) which states that State can make a special provision for emancipation of women. Therefore these regulations have come in. But dignity has nothing to do with marriage. My marriage is not registered, as your lordships noticed, so I have no dignity that means? I am not looking for any recognition from any law. I don’t want the Parliament etc. We never depend on the state. Here there is a particular reason for demand of recognition by the State and Court and that is, as Mr Rohatgi said, that we want to use the Court to bring about 'social acceptance'. It is all about social acceptance...", Senior Advocate vehemently submitted.

Dwivedi further submitted that any number of judgments will not create social acceptance. It is only social evolution, in which representatives of people participate, that will alone bring social acceptance.

"I am not inimical to their relationship. But what is the way? It is the social evolution involving representatives and not a cultural revolution through Court", he submitted.          

Dwivedi further said that laws could be made by the legislature in piecemeal, in one particular area, and in a phased manner with "spacing". He elucidated an example citing that women got the right to maintenance in 1937, which was expanded in 1956 and they became coparcener in 2005, and that even today they don’t have rights under the agricultural reforms act.

All causes have their martyrs

On the argument by the petitioners that they cannot wait for the Parliament to act since they are getting old, he responded by saying, “It is a cause for which you are battling. All cause takes time to succeed and all causes have their martyrs. It is not an individual thing that I got married and I did not get married or I left the world without getting married. This is a cause which requires social accommodation and therefore Parliament which has the pulse of the people in hand is in the best position to decide when to take the next step, what should be the next step and how should it be brought about".

"These are sensitive areas where the Courts, as far as possible, should keep away and not force things. I am beseeching your lordships, don't force it. ...We do not know what consequences will happen, or not. I am not trying to predict something. But slowness is the way forward in such matters, not speed. As we go in the mountains, there are always warnings that be slow, else there is danger", Rakesh Dwivedi submitted.

Rakesh Dwivedi made further submissions about the consequences on other statutes if the Court interprets provisions in the Special Marriage Act, and will continue to argue when the Constitution Bench hears the matter again next week on Tuesday i.e. May 9.