Same-Sex Marriage| Societal Values Can Not Trump Equal Treatment: Argues Dr. AM Singhvi

Today marks the second day of the Constitution Bench hearing of the same-sex marriage cases, where legalising marriage between persons of same-sex has been sought.

The Constitution Bench of Chief Justice of India DY Chandrachud, Justice SK Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha is hearing the matter since yesterday.

On the first day, Solicitor General Tushar Mehta raised preliminary objections, Senior Advocate Mukul Rohatgi started with his submissions and continued till the first half of the second day. Today, post lunch, the Court began hearing Senior Advocate Abhishek Manu Singhvi on behalf of the petitioner.

In the opening line of arguments, Singhvi assured the Court that "95% of the arguments will not be repeated apart from the slight overlaps here and there", and sought permission to carry on with his submissions till the third day. Justice Kaul, appreciating his skills, said, "Your ability is to put it in point wise". To that, Justice Bhat lightly commented, "You know Mr. Singhvi from the T-20 or a one-day international, we have gone to the tests". This is atleast between a one day and a test if not a test!", replied Singhvi. However, the CJI said, "the longer time to hear does not mean it is going to be more better" (in a light-hearted manner). While Justice Kaul said, "You know, my attention span does not last that long".

At the outset, Singhvi submitted 3 heads of submissions. But opened by saying, "Let me open by stating what the matter is about which is of course the 3 headings which are first and foremost the interpretation of Special Marriage Act, consistent with the Constitution on the touchstone of the larger constitution values of Preamble and all Part 3 relevant Articles, so that is Constitution Compliant Interpretation, that brings us Article 21, 19. The most important word is non-discriminatory inclusion, the catchword is "discriminatory exclusion". The second head Milords is, notice and objections to the regime of the same Act. And third, relief/remedies or to say achieving result effective on the ground". To that the Bench asked, "on the second point is there a petition seeking a declaration?". Singhvi replied, "Yes, yes ours, in particular, my petition".

Then further in his submissions said that, "the heart of this case is not on compliance but on the right to choose the most enduring of relationships the martial relationships regardless of sex and sexual orientations, regardless of gender or gender identity. And to manifest the idea of love in marriage regardless of those, the right to love and right to manifest that love into marriage is the heart of this case. Discriminatory denial to a section of the community to do it based on that sex and sexual identity and orientation. Milords Navtej Singh Johar was momentous in decriminalization but it still remains in a real sense little done vast undone. Now your lordships are travelling on path to get the significant done". "...I am entitled to seek, ensure and demand protection from invasion. What prevents the State from doing it", and further said, “If you dig deep the government of India is saying Hoist on your own petard”.

"Just as heterosexuals seek it and deserve it, non-heterosexuals also seek it and deserve it. Because of the sense of security it provided to couples, of course, it provides much more to the vulnerable couples under SMA. Because of the importance of the institution of marriage we want to apply it across board. It provides financial support. This is scriptive disqualification. Of course, I don’t marry because of tax benefit, I mean some people do, but it is a gateway to ten important things there". Justice Kaul to that said, "People even separate for tax benefits".

CJI says, "Incidentally even if a couple is gay or lesbians one of them can still adopt. The whole argument that it will impact the psychological health of the child cannot sustain. Even today, on the state of the laws, it stands".

Singhvi then further submitted that "the submissions enlists vertical rights that are involving the States while horizontal that are non-state. Marriage is not a label but a meaningful concept with content. Adoption, surrogacy, intestate succession, tax exemption, deductions it simple requires marriage, compassionate (illustrative not exhaustive), compensation to dependants, post retirement benefits, right to bodily remains and so on and so forth are the vertical rights. Horizontal rights are the which are daily incidents of harassment, if I may say so."

Justice Bhat then asked, "Insurance law per se, medical also are subject to regulations, do you have IRDA regulations? You could nominate anybody. We are not looking for a nomination but default. There are certain things which perhaps can be done straight away". Senior Advocate Menaka Guruswamy then submitted that "all that Banks have is this Court, as there are no specific RBI guidelines. However, if the Court recognizes it, the Banks shall too".

Furthermore, Singhvi in his arguments quoting Justice Indu Malhotra in Navtej Singh Johar submitted, "In standards of judicial scrutiny, the natural or innate sexual orientation of a person cannot be a ground of discrimination".

CJI then remarked that "You cannot discriminate against an individual on the basis of characteristic on which the individual has no control. It is also an argument in response that it is urban elitist, and that it has class bias because if something is innate then it can't be elite or class bias, it may be more urban in manifestation because more people in urban areas are coming out of the closed closet".

"There are no more urban or rural, there is a term “Rurban”, Singhvi replied.

"SMA is avowedly a secular law, as who could not and did not solemnize marriage under their personal laws, married under this law", argued Singhvi.

He further cited an example, "The State announcing a welfare benefit, and then declares off limits for blue eyed people. On being challenged the State says that the legislative purpose of the scheme is to extend the scheme to be made for all except blue eyes. Would that be a relevant consideration?".

“33 examples where 10 examples are from 10 different countries, consistent with constitutional values bringing in marriage recognition for same sex persons, Brazil, Colombia, Austria, Ecuador, Mexico, SA, US, Vietnam", Singhvi said. Further he added, "The most important pillar is non discriminatory equal treatment. Second is freedom of expression, speech extends to quote unquote to socially valuable participation and socially valuable forms of expression. Under what part of 19(2) can you touch it? Have you shown it to the Court?” You stretch it to decency and morality”, he added.

"Caste based restrictions in temple entry, rules that prohibited women from participating in male professions, discrimination to accommodate disability in public examinations. The exclusion of LGBTQ from social institutions of marriage is the last remaining social outposts that sanction such exclusion". Third pillar dignity, to treat everyone with equal concern and respect and not to send a message that any individual is less worth because of their scriptive characteristics. Or that any group is..", he submitted.

While citing a foreign judgment of the House Lords in Ghaidan vs Mendoza Singhvi submitted, "a constitutional compliant interpretation of a statute/ treaty compliant which is their constitution, is not limited by the statutory text or the legislative intent but in a dynamic evolving context ONLY ( only is important) by underlying thrust of the legislation and by institutional capacity of the court". Singhvi further said, "So now what your lordships are allowing is creating of hierarchy between different conceptions of the society".

He further cited another foreign judgment for interpreting the words husband/wife as spouse for various purposes.

Earlier, Solicitor General Tushar Mehta appearing for the Union of India submitted that considering the use of the word "person" in the Special Marriage Act, the legislative intent of the legislature throughout has been a relation between a biological male and a biological female.

Supriyo@Supriya Chakraborty v. Union of India