Petitioners Have A Cause, But No Case: Read Advocate Sai Deepak's Arguments In Same Sex Marriage Case
The Constitution Bench of the Supreme Court consisting of Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha today heard the submissions of Advocate J Sai Deepak who was representing a women's forum opposing the batch of pleas seeking recognition of the same-sex marriage.
When the CJI asked him to formulate his line of argument, Sai, Deepak started by saying that since he only has twenty minutes, he will formulate his position without reading out anything.
He started by saying, "The first law of thermodynamics effectively encapsulates the entire position when it comes to physics from there all corollaries flow. So the central position that is effectively placed before my lords is with respect to the distinction between fetters and powers, which is to say that this particular area which the petitioners seek to espouse before my lords falls within either the prohibited areas or it is something which falls within the area for my lords' adjudication. That is the central issue."
Continuing, he submitted, "The question of legislative competence is just one aspect of this issue which hinges on separation of power, but I go a step further which is to say that when the petitions raise the question of change in heteronormative attitudes, does the society have a right of agency to participate in these proceedings of not or at least in this particular issue or not. Because this is not a question of separation of territories between different organs of the state, but it fundamentally hinges on the right of the agency of the society to participate in this particular discussion and that is the central problem in these kind of issues and subjects are taken up by the court of law as opposed to leaving it for legislative prerogative to apply its mind".
They Have a Cause, But Not a Case
Commenting on the case of the Petitioner, J Sai Deepak contended that "during the course of these proceedings over the last two weeks we have heard the submission being made, that it is a liberal democracy, liberal documents so on and so forth. Does it mean that social conservatism has absolutely no place within the remaining of the constitution? Does it mean society does not right to draw a few red lines to basically say thus far and no further? That is the central question".
He submitted that he represents a women's organization which equally represents the rights of children. He said that as a civil society organization, the question that has been raised is whether the nature of the prayers raised in the petition has the consequence of "individualizing a socio-centric institution such as marriage".
He explained "individualization" by submitting that it is the argument that as long as it is a transaction between two individuals who are consenting and who are not prohibited by any prohibition of degrees, the rest of the so society has absolutely no say as far as this institution is concerned. He said that this fundamentally demeans the institution of marriage and takes away its social character. "I am sorry to say this, and let me try and tone down the rigour of my submission, to the extent of saying, I believe they have a cause- I just don’t believe they have a case", he said.
"The cause is different from the case, and it is important for the Court to seriously consider one aspect here. When there are issues of legislative competence this another figure so to speak which is involved and that figure's powers come under Article 111 of Constitution, which is to say that if a legislative proposal ultimately meets with the consent of both the houses, ultimately it has to pass and the Hon’ble president has the power to recommend amendments to a legislation", he argued. Article 111 talks about the assent of the President required by laws passed by the Parliament.
He submitted that the petitions raised the question of changing the paradigm with respect to the heteronormative attitude of legislations in general and that it is not just about the Special Marriage Act.
He submitted that the Court is not dealing with any religion-specific law, but the Special Marriage Act and hence participation of the entire society is warranted in the debate. He said that with respect to religion-specific laws, there is an identifiable group which has a locus to argue, but that for Special Marriage Act it can’t be that only those who "subscribe to the value of the Special Marriage Act" are allowed to participate in the proceedings. He also submitted that Section 21 of the Special Marriage Act has a direct bearing on personal laws.
Judicial Paternalism
He submitted that he has produced the Manual for Parliamentary Procedure of 2019, published by the Ministry of Parliamentary Affairs and that the manual has Chapter 9 which deals with the business of the legislature. "Close to 30 clauses exist detailing the manner in which a legislative proposal is to be considered in the first place, how a ball is set rolling", he submitted and read from the Manual.
"If I may say so and I say it with the deepest of respect and greatest humility that I command at this point, the judicial mechanism cannot be a substitute to any of these steps. Especially when it comes to such a serious issue.
He said that as per Hindu Law, the purpose of marriage, or the object of 'dampathya' is procreation. He answered the questions posed by the Bench earlier about a single parent, a homosexual single parent etc by saying, "Public morality is decided by the normative attitudes. The norms is decide by the mainstream, this is not a majoritarian argument, this is a statement of fact in democracy."
"When normative attitudes are sought to be revisited, to say that those to constitute a norm don’t get to participate in this discussion because that particular process or dance of democracy is sought to be circumvented by using the instrumentality of the Court to secure a certain outcome, I am sorry to say, defeats the purpose of advocacy. Those who are interested in convincing the society are expected to engage with the rest of the society to make good their cause. The judiciary cannot be a substitute to this particular process because it then effectively replaces the social ....(inaudible) with, I am sorry to use the words, judicial paternalism. That can't happen."
He submitted that the benefit of revisitation of a judgment with respect to sensitive issues by way of clarification is not an adequate substitute, but a sub-optimal substitute. He said that it is settled that a judgement is not to be read as a statute and that no precision can be imparted to the language or findings and that principles of statutory interpretation don’t apply. He said that hence we are left with greater uncertainty. He submitted that the NALSA judgment has a plus and a downside to it. He said that it must be read in its context, which was about the recognition of a third gender. He said that to extrapolate the findings to a marital transaction is to "read a judgment for what it is not".
Justice SR Bhat then remarked, "I think we are aware of how to read these judgments. We don’t need to be taught. We understand that there are contexts, whether there are analogies or not are up to us".
Sai Deepak continued by arguing that the judgment does not help the petitioners' position and points to problems with respect to judicial revisitation of some of these aspects. "Narrow language being expanded through judicial interpretation contrary to legislative intent and history is to rewrite legislative history and judicial reinscription which is retrospective in nature may not be permissible", he submitted.
He submitted that Yogyakarta Principles specifically leaves it to countries to decide if they wish to have recognition with respect to the marital union. He said that there is no binding international instrument on the subject.
"I am not arguing that it should not be, I am simply saying, if the door of judicial intervention is opened for one case, even though the cause may be worthy, what would it do for the future, because, ultimately it's not just the question of one matter it is a question of the future as well", he said, adding that the issue of separation of power and societal participation go beyond this matter.
Concluding his arguments, he submitted that there are other important issues to be dealt with. "Having engaged with certain transgender activists and also having worked with them, I know for a fact their biggest problems is trafficking, them being pushed into prostitution, not having legitimate livelihood". He said that he is not dismissing anybody's concerns with respect to their priority, but that these issues need to be addressed before we get into the next step.
