Tag: samesex

‘Dangerous proposition’: Jamiat on stand that SC rule on same-sex marriages

[ad_1]
New Delhi: The Jamiat-Ulama-i-Hind on Tuesday told the Supreme Court that arguments made by petitioners’ counsel that the top court should make a declaration about legal validation for same-sex marriage as Parliament is not likely to do anything about it will be a “dangerous proposition”.
Senior advocate Kapil Sibal, representing the Jamiat, submitted before a five-judge bench, headed by Chief Justice of India D.Y. Chandrachud that he was “very worried” at the beginning of the hearing when the petitioners’ side said that Parliament is not going to do anything about it so the court should make a declaration.
He said it would be a wrong step forward if there were to be a declaration on the premise that Parliament is not likely to pass a law on same-sex union and emphasised that any law of this nature requires public discourse, which includes discourse within and outside parliament.

“I say that it is a very dangerous route to take,” Sibal contended before the bench, which also comprises Justices S.K. Kaul, S.R. Bhat, P.S. Narasimha and Hima Kohli.
Sibal said after the declaration by the court there will be no scope for debate in the Parliament — one that same-sex union is a fundamental right; two, it has to be recognised.
However, the top court said the Parliament can overrule a declaration. Sibal replied that “once your lordships have declared, the Parliament can’t overrule it. I hope that stage has not come for Parliament to overrule what your lordships decide.”
He said the court is now deciding two things — sexual unions and recognition by the state of sexual unions.
Sibal said if question arises whether that sexual union is akin to a marriage and, if yes, is it founded in any provision of the Constitution, and for it to result in certain rights, it can only be done through recognition by the state through legislation, and stressed that there can’t be a declaration from the court.

The top court observed that it takes Sibal’s point that “don’t go into an area where you declare a right to marry.”
Sibal, in the context of acceptance, said it is also at three levels – first by two individuals themselves, then by the family, and thereafter by the society. He argued that nobody can dispute the fact that same-sex couples have a separate sexual identity and even the government has not disputed it.
The top court will continue to hear a batch of petitions seeking legal sanction for same sex marriages on Wednesday.
[ad_2]
#Dangerous #proposition #Jamiat #stand #rule #samesex #marriages
( With inputs from www.siasat.com )

May 9, 2023
Whether anyone has a fundamental right to marry? SC queries while hearing pleas for same-sex marriages

[ad_1]
New Delhi: While hearing a bath of pleas for same-sex marriages, Supreme Court on Tuesday queried whether anyone has a fundamental right to marry, or is there no fundamental right to marry at all and stressed that the Constitution itself is a tradition breaker.
A five-judge bench headed by Chief Justice of India D.Y. Chandrachud asked senior advocate Rakesh Dwivedi, representing the Madhya Pradesh government, “forget the issue of same sex, does anyone have a fundamental right to marry? Or, is there no fundamental right to marry at all? Because your submission is that no one has a fundamental right to marry”.
Dwivedi said that so far the marriage is between two heterosexual individuals.

The bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, said it is not on heterosexual, “does any citizen of this country for whom this court, our society, our polity, has placed the individual at that highest pinnacle. And, we have gone ahead carved and discovered so many rights — to personhood, right of choice, right of left alone, privacy, dignity… with all this, the question is does a person or citizen have a right to marry”.
Justice Bhat asked: “Is it part of Article 21 or not part of it? We have to start with the premise that there is no unqualified right. Right to free speech is not unqualified right, right to association is not unqualified, personal liberty is not unqualified, right to life. Therefore, there is no absolute right, if we start with that premise. Does the right to life have the concomitant right to marry.”
The bench asked Dwivedi to not start the debate that same sex people do not have right to marry, rather start with is right to marry or is there a right to marry.
Dwivedi said heterosexual couples have the right to marry in accordance with their custom, personal law, and religion, and that is the foundation of their right.
The Chief Justice observed: “Therefore, you concede the fact that there is a right to marry under the Constitution, but it is only confined to only heterosexual persons according to you, or is it your argument that there is no right to marry at all as a fundamental right?”

Justice Bhat said: “Custom, culture, religion, rewind 50 years ago inter-caste marriages were not permitted. Even inter-faith marriages unheard of, therefore, the context of marriage has changed.”
Dwivedi said: “these changes have been brought about by legislation and legislature can alter the customs. The Constitution only gives a fundamental right to form relations, associations, which is in Article 19 (1) (c) which can be regulated. He added that marriage over the years has resulted in social institutions as a result of society’s evolution, and the right to marriage which was existing as a part of social institutions will be accommodated in the right to associate in a particular manner.
Justice Bhat said: “The Constitution has not granted anything. It only recognizes and guarantees, nothing is granted. We’re free citizens. We have taken this to ourselves. Right to speak, to associate, these are part of our inherent rights. The Constitution doesn’t grant it… Even legislation has only recognised the right to marry is inherent. If we say the right to marry is inherent then it is part of the Constitution. You may locate it in (Articles) 19 or 21a.”
Justice Bhat said “the moment you bring tradition, the Constitution itself is a tradition breaker. Because the first time you brought in (Articles) 14, you brought in 15, and 17, those traditions are broken”.
The bench queried, “if those traditions are broken, what is held hallowed in our society in terms of caste?”
“We made a conscious (decision)… and said we don’t want ita.outlawing untouchability in the Constitution. But at the same time let us be alive to the fact that the concept of marriage has evolved.”
Dwivedi submitted that the point is that all these reforms are made by the legislature for the interest of women and children and they do not alter the core aspect of the social institution of marriage, “namely that it’s an institution. Hindu marriage is regarded as a Sanskar”.
Dwivedi contended that the core aspect of marriage remains and pointed at alimony, maintenance, divorce, inter caste and added that ultimately the marriages remain heterosexual marriages.
The bench observed that to state at the extreme that there was no fundamental right to marry under the Constitution would be far-fetched.
“What are the core elements of marriage? If you look at each element, each is protected by constitutional values,” it said.
The Chief Justice said one, marriage itself postulates two individuals to cohabit; two, marriage accompanies with it the existence of family; three, marriage has procreation as a very important ingredient; four, marriage in a significant way is exclusionary to all others; and five, social acceptance of existence of marriage.
The top court will continue to hear arguments in the post -lunch session.
[ad_2]
#fundamental #marry #queries #hearing #pleas #samesex #marriages
( With inputs from www.siasat.com )

May 9, 2023
Dangerous, misleading, say LGBTQ activists on RSS’s survey on same-sex marriage

[ad_1]
New Delhi: Several LGBTQ rights activists have called the survey on same-sex marriage by an RSS body “dangerous and misleading” and accused the organisation of “spreading disinformation”.
According to the survey by Samwardhini Nyas, an affiliate of the Rashtra Sevika Samiti (a women’s organisation which parallels the RSS), many doctors and allied medical professionals believe that homosexuality is “a disorder” and it will increase further in society if same-sex marriage is legalised.
“Such a study is dangerous and misleading for a society that is unaware. It goes against basic dignity and amounts to defamation. Who are these doctors who have respondents in the survey? Their licences should be cancelled.

“Be it The Yoga Institute which was founded in 1918 or the Indian Psychiatric Society, both have maintained that homosexuality is legitimate and normal, it is natural, inborn and choiceless,” said author and advocate for equal rights, Sharif Rangnekar, who also points out how Hinduism is replete with references to homosexuality.
Activist Harish Iyer said that psychiatric bodies from across the world and India have maintained that homosexuality is not an “aberration but a variation”. It is beyond any reasonable doubt, he said.
“No religion that claims to be a protector of humanity can also support this labelling of LGBTQIA+ individuals as deviants. It is against the ethos of our nation and also against the very grain of the belief of every religion that is based on the principle of love and acceptance.
“If you believe that your God created all of humankind. Then God made me too. And standing up against LGBTQIA+ individuals is akin to working against the intent of your God. God made me this way,” he said.
Iyer also appealed to the government to raise awareness on the issue.

“In keeping with the ruling on Section 377, the government’s responsibility is to create awareness to ensure more acceptance and no misinformation. I would appeal to the government of the day to step in and stand against such blatant disinformation,” he said.
Q Manivannan, a queer scholar and PhD candidate, at the University of St Andrews, to refers to ancient mythology in debunking the results of the survey.
“The RSS forgets, when convenient, that homosexuality is rife in mythology too. Same-sex unions of many kinds, companionships and homoeroticism, much like transgender themes, feature in the Ramayana, in the Mahabharata, and the Upanishads,” he said.
Activist and CPI-M leader Subhashini Ali also attacked the survey. “It was “idiotic unscientific, inhuman,” she tweeted.
The survey has been conducted by the Samwardhini Nyas against the backdrop of a five-judge Constitution bench of the Supreme Court, headed by Chief Justice D Y Chandrachud, hearing arguments on a batch of pleas seeking legal sanction for same-sex marriage.
A senior functionary of the Rashtra Sevika Samiti had said the findings of the survey are based on 318 responses collected across the country covering medical practitioners from eight different paths of treatment from modern science to Ayurveda.
In their response to the survey, according to Samwardhini Nyas, nearly 70 per cent of the doctors and allied medical professionals stated that “homosexuality is a disorder” while 83 per cent of them “confirmed transmission of sexual disease in homosexual relations.”
[ad_2]
#Dangerous #misleading #LGBTQ #activists #RSSs #survey #samesex #marriage
( With inputs from www.siasat.com )

May 7, 2023
‘Committee to address concerns of same-sex couples’: Centre to SC

[ad_1]
New Delhi: The Centre on Wednesday told the Supreme Court that a committee headed by the cabinet secretary would be constituted to explore administrative steps for addressing some concerns of same-sex couples without going into the issue of legalising their marriage.
Solicitor General Tushar Mehta, appearing for the Centre, told a five-judge Constitution bench headed by Chief Justice D Y Chandrachud, which is hearing a batch of pleas seeking legal validation of same-sex marriage, that the government is positive about the suggestion for exploring administrative steps in this regard.
He told the bench, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, that this will need coordination between more than one ministries.

On the seventh day of hearing in the matter, Mehta said the petitioners can give their suggestions on the issue of exploring what administrative steps can be taken in this regard.
While hearing the matter on April 27, the apex court had asked the Centre whether social welfare benefits can be granted to same-sex couples without going into legalising their marriage.
The court had posed the question after observing that the Centre’s acceptance of right to cohabitation of same sex partners as a fundamental right cast a “corresponding duty” on it to recognise its social consequences.
Subscribe us on

[ad_2]
#Committee #address #concerns #samesex #couples #Centre
( With inputs from www.siasat.com )

May 3, 2023
Can same-sex couples get social welfare benefits without legalising their marriage? SC asks Centre

[ad_1]
New Delhi: The Supreme Court on Thursday asked the Centre whether social welfare benefits can be granted to same-sex couples without going into legalising their marriage.
The court posed the question after observing that the Centre’s acceptance of right to cohabitation of same sex partners as a fundamental right cast a “corresponding duty” on it to recognise its social consequences. “You may or may not call it marriage but some label is necessary.”
A five-judge Constitution bench headed by Chief Justice D Y Chandrachud, hearing a batch of pleas seeking legal validation of same-sex marriage, took note of the submissions of the Centre, represented by Solicitor General Tushar Mehta, that “right to love, right to cohabit, right to choose one’s partner, right to choose one’s sexual orientation” is a fundamental right.

“But there is no fundamental right to seek recognition of that relationship as marriage or in any other name,” the top law officer told the bench, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
Mehta said there was no fundamental right to get all types of social relationships like marriage recognised.
“There is no positive obligation on the state to recognise all personal relationships. There are a large number of relationships in the society and all need not be recognised.”
The bench responded to say, “Let us go step by step.”
“Once you recognise that there is a right to cohabit. In other words, a homosexual relationship is not really one off incident in the life of a person. That may also be symptomatic of a person to stay in emotional and social relationships.

“Once you recognise that the right to cohabit itself is a fundamental right … then there is corresponding duty on the State to at least recognise that the social incidents of that cohabitation must find a recognition in law. We are not going to marriage at all at this stage,” it said.
The bench referred to the consequential problems such as nomination of heirs in gratuity, provident funds, succession and parenting in schools, and said that various ministries of the government can ponder over these issues and apprise the court about the steps which can be taken to redress them.
“From that point of view we would be more than willing to have the government make a statement before us that because you have ministries dedicated for this purpose, the Ministry of Social Justice and Empowerment… Ministry of Women and Child development etc.”
Noting that there were so many issues on the administrative side, the bench said the government can find real solutions and the top court can act as “facilitators” to achieve them.
“Short of that, the law has gone so far now.. the government should ensure that these cohabiting relationships must be recognised in terms of creating conditions of security, social welfare, and to ensure, by doing that, you also ensure for the future that such relationships are not ostracised in the society.”
The bench, however, said it understood its limitations as a court but many issues can be dealt with by the government in the administrative side.
“We take your point that the courts cannot go into the legislative arena. That you will be legislating and that this is not your remit. This is for Parliament and for the state legislature,” the bench said, adding that actions may be taken to deal with problems of same sex partners by the government in administrative side.
“The relationship of the court with the government in that sense is not really adversarial. Especially on socio-economic matters we are pushing the government and asking they come on, come back,” it said.
The court may not have a model within it and it may not be appropriate for it to devise that model, the bench added.
“But we can certainly tell the government that look the law has now gone so far recognising such relationships. Should we not ensure that there is certain degree of recognition.”
It termed that the issues relating to same-sex marriages are “much more difficult” than the Vishakha case which dealt with sexual harassment at work place, and said “because we don’t have one silo and these have linkages everywhere such as adoption, maintenance, succession everything”.
On the sixth day of hearing, the bench told the Centre that same-sex persons, despite their relationship being recognised, cannot come to the government seeking redressal of their grievances and said “there is an element of duty on the state as a welfare, democratic state. There are aspirations of the people that there will be some recognition somewhere.”
Referring to various problems being faced by same-sex couples, the bench asked, “can they not have joint bank accounts” and said that presently, it was not taking the issue to the level of marriage recognition.
“I don’t think there is an issue with that… I thought this should come from you (the government). Because we want some element of a broad sense of coalition. Because we are also conscious of the fact that there is much this representative democracy can achieve in our country. We will be happy to get that kind of assistance,” the CJI said.
The bench said there was no bar in adopting a child by one of the partners of the same-sex relationship.
“Now in such a situation, if a child goes to school, does the government want a situation where the child is essentially treated as a single parent child…So we don’t have to go for all or broke approach. At least at this stage of development of our social ethos, does the child should not have the benefit of co-habitation of two people in whose home the child resides.”
This is more a sociological problem, the law officer said, adding these are hypothetical situations.
“These are real life situations,” the bench countered.
The bench said it was the impact of British Victorian morality which led to forsaking of Indian cultural ethos and a situation where homosexuality became such a big problematic issue.
“You got some of our finest temples and see what reflects in their architecture… We imposed as it were a code of British Victorian morality on a completely different culture. Our culture was extraordinarily inclusive and broad which is possibly one of the reasons, why our religion survived even after foreign invasions. It happened because of the inclusions, tolerance and the great and profound nature,” the bench said.
It also referred to old Privy Council principle which said that long cohabitation itself raises the presumption of marriage.
The bench said that the lesbians and gay couples have been “very badly stigmatised”.
The law officer said that he will take up the issues with the appropriate level and get back to the court on May 3, the next date of hearing.
[ad_2]
#samesex #couples #social #welfare #benefits #legalising #marriage #asks #Centre
( With inputs from www.siasat.com )

April 27, 2023
‘Some label necessary’: SC seeks Centre’s view on social benefits to same-sex couples

[ad_1]
New Delhi: The Supreme Court on Thursday asked the Centre to find a way to give same-sex couples basic social benefits, like joint bank accounts or nominating a partner in insurance policies, even without legal recognition of their marital status, as it appeared that the court could be agreeing that granting legal recognition to same-sex marriages falls within the domain of legislature.
A bench headed by Chief Justice of India and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha said: “Look at the profound nature of our culture, what happened that in 1857 and thereafter, you got the Indian Penal Code, we imposed as it as a code of Victorian morality… our culture was extraordinarily inclusive, very broad and it is possible one of the reasons why our religion survived even after foreign invasions because of inclusion, the profound nature of our culture.”
The bench told Solicitor General Tushar Mehta, representing the Centre: “We understand our limitation as a court, no question about it. There are so many issues, of course you have made your argument on the legislative side, so many issues on the administrative side… we not have a model, it will not be appropriate to devise a model but we can certainly tell the government that look, how law has gone so far now…”

Mehta said that class specific problems can be addressed.
The Chief Justice said, “We take your point, look if the court were to go in the legislative arena, you have made a very powerful argument on that, look you will be legislating. This is not your remit, this is for Parliament or state legislatures… but short of that, our law has gone so far now.”
“Now what the government can do to ensure that these relationships based on cohabitation or associations, they must be recognised in terms creating conditions of security, social welfare, and while doing that, we also ensure for future that these relationships should ceased to be ostracised in the society.”
Mehta contended that while same-sex persons have the fundamental right to cohabit, choose a partner etc, the same cannot be given the label of marriage.
The Chief Justice said: “Once you recognize the right to cohabit, homosexual relationships are not really one off incidents in the life of persons, they may also be symptomatic of a sustained emotional, social, and physical relationship. Once you recognise that right to cohabit is a fundamental right, then to say to you cannot seek any legal recognition at all… because once we accept the fact that same sex couples have a right to cohabit then there is a corresponding duty on the state to at least recognise that cohabitation must find recognition in the law… we are not going into marriage at all.”

“Cohabitating couples… can they not have a joint bank account, a nomination in the insurance policy.”
Mehta said these are all human concerns, “which I also share and also the government shares, and we must find a solution from that point of view”.
The bench said: “You may or may not call marriage, but some label is necessary.”
The Chief Justice said, “We want some element of broad sense of coalition, we are also conscious of the fact that so much which representative democracy must achieve in our the country… one of the couple of same sex relationship can adopt no bar at all. In such a situation, if a child goes to school, does the government want a situation where the child is treated as a single parent child… you do not have to go as far as marriage in this as well. Can the child not have the benefit of cohabitation between the two people in whose home the child resides.”
“There is a concern, then both have to be recognised.”
Mehta submitted that there is a more of a sociological problem, rearing of the child, development of the child, these are hypothetical situations.
The bench observed that long cohabitation raises the presumption of marriage, because in old times where were the marriage certificates or registration.
It said that when court says recognition it need not be recognition as marriage, it may mean recognition which entitles them to certain benefits, and the association of two people need not be equated to marriage and “not marriage but some label is needed”.
The top court asked Centre to come back on May 3, with its response on social benefits that same sex couples could be granted even without legal recognition of their marital status.
The top court is hearing a batch of pleas seeking legal sanction for same-sex marriages. The Centre has told the Supreme Court that demand for same-sex marriage is a “mere urban elitist views for the purpose of social acceptance”, and recognising the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law.
[ad_2]
#label #seeks #Centres #view #social #benefits #samesex #couples
( With inputs from www.siasat.com )

April 27, 2023
Same-sex marriage: Rijiju says to be decided by people, court no place to settle such matters

[ad_1]
New Delhi: As the Supreme Court hears pleas seeking legal sanction for same sex marriages, Union Law Minister Kiren Rijiju on Wednesday said an important matter like the institution of marriage has to be decided by people of the country and that courts are not the forum to settle such issues.
He, however, clarified that he does not want to make the matter a “government versus judiciary” issue. “It is not. Absolutely not,” the minister asserted.
Responding to a question at Republic TV conclave, he said, “It is a matter which concerns every citizen of India. It is the question of people’s will. The will of the people is reflected in Parliament or in the legislature or assemblies…”

Apparently referring to the Constitution bench of the top court hearing the matter, Rijiju said, “If five wise men decide something which is correct according to them — I cannot make any kind of adverse comments against them — But if people do not want it, you cannot impose things on the people…,”.
Same-sex partners from around the country have approached the Supreme Court with a plea stating that same sex marriages should be legalised under the Special Marriage Act.
The law minister further said that sensitive and important matters like institution of marriage have to be decided by the people of the country.
The Supreme Court has the power to issue certain directions. Under Article 142, it can also make laws. If it feels some vacuum has to be filled, it can do so with certain provisions, he pointed out.
“But when it comes to a matter which effects every citizen of the country, SC is not the forum to decide on behalf of the people of the country,” Rijiju added.

The Centre on Wednesday requested the apex court to consider leaving questions raised in the pleas seeking legal sanction for same sex marriages to Parliament.
Appearing for the Centre, Solicitor General Tushar Mehta told a five-judge constitution bench headed by Chief Justice D Y Chandrachud that the court is dealing with a “very complex subject”, which has a “profound social impact”.
[ad_2]
#Samesex #marriage #Rijiju #decided #people #court #place #settle #matters
( With inputs from www.siasat.com )

April 26, 2023
Same-sex marriage: Parliament has power to legislate; how far can courts go into it, asks SC

[ad_1]
New Delhi: The Supreme Court on Tuesday said Parliament undisputedly has the legislative power over issues raised in pleas seeking legal sanction for same-sex marriage and pondered over the “interstices” left open for it to exercise its power and till what extent.
A five-judge Constitution bench headed by Chief Justice of India D Y Chandrachud was faced with several consequential legal questions, such as adoption, succession, intestacy and laws governing pension and gratuity where a once legally-acknowledged spouse is the beneficiary, if it decides to legalise same-sex marriage.
The bench observed that if same-sex marriage is allowed, then the judicial interpretation, keeping in mind the consequential aspects, will not remain confined to the Special Marriage Act, 1954 and personal laws will also come into play.

“Now, the question which we really therefore have to pose is, if this is a power which is conferred specifically on Parliament, where does the court really exercise its jurisdiction. Which are those interstices which are left open for the court to exercise its powers,” the bench, also comprising Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, said.
Observing that there is no denying that there is a link between the 1954 Act and the personal laws of various religions, the bench said, “Therefore, you cannot confine to the Special Marriage Act and it has to go beyond it.”
On the fourth day of the hearing, senior advocate Saurabh Kirpal, who appeared in the court on behalf of the petitioners, vehemently pleaded for legal validation of same-sex marriage, saying seven per cent of the country’s GDP will be affected if the LGBTQIA++ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally) are denied this fundamental right.
He said gay and lesbian people are also like heterosexuals and if their marriage is not registered here, they will leave for another country for better rights, and contended that it will be a “gay brain-drain”.
“There cannot be a situation where the court will say that it cannot give everything so it will give nothing,” Kirpal said.

Referring to the possible impact after validating same-sex marriage, the bench quipped, “Aren’t we taking too many legislative steps here? You are actually bringing in a contemporary (issue) when the intention was something else that time when the Special Marriage Act was enacted.”
It said the absence of a broader legislation covering a wider class of persons like the LGBTQIA community is not a ground to strike down that law.
The bench referred to section 21A of the Special Marriage Act, which provides certain reliefs to Hindus, Buddhists, Sikhs or Jains in property and other related issues if they solemnise their marriages under the law, and said it is very specific and if the court has to make some provisions of reading it, it has to be consistent with other provisions.
The bench told senior advocate Menaka Guruswamy, who represented the petitioners, that suppose the top court substitutes the terms man and woman with “spouse” or “person” in section 4 of the Act, which deals with conditions relating to solemnisation of special marriages, the question will be can it “stop at that today”.
“Dr Guruswamy, the point really is that the fact that the canvas which is covered by these petitions also falls or does fall within the domain of Parliament is undisputed,” the CJI said, adding, “You cannot dispute the fact that Parliament has the legislative power over the canvas which is covered by these petitions, which is Entry 5 of the concurrent list,” the bench said.
Guruswamy contended that the Centre cannot come to the court and argue that this a matter for Parliament as when the fundamental rights of an individual are violated, he or she has the right to approach the court.
Referring to the 1997 Vishaka verdict that laid down the guidelines to handle cases of sexual harassment at workplace, the CJI said it was a classic example where the court laid down the framework pending the legislature coming up with a law in this regard.
“The test really is this — how far does the court go,” the bench said.
Referring to the submissions advanced by the petitioners, it said there is no doubt that adoption, succession and intestacy are matters governed by personal laws even today.
“My lords have been that north star, not just for LGBTQ rights, my lords have been the north star in many facets of fundamental rights pre the legislature walking the talk,” Guruswamy said.
She said the petitioners are not asking for anything special and are only asking for a workable interpretation of the Special Marriage Act.
“We are also part of ‘we the people’ and we are citizens of this country. The basic structure (of the Constitution) also belongs to us,” Guruswamy said.
The bench said the petitioners are right in asserting that marriage itself is a bouquet of rights and though they have identified three aspects — gratuity, provident fund and pension — “actually, it does not stop at that at all”.
It gave an example about the entitlement of one spouse upon the death of the other in a motor accident.
“How does the court today, if we have to go into this, avoid getting into other issues which are necessarily intrinsically interlinked to what you are arguing?” it asked.
Guruswamy argued that a declaration on recognising same-sex marriage would be the first step.
“How many times are we to play the follow-up? That is what worries us. Because if we are not to go into it just because it suits certain cases and that is the thorny issue … our job is to look at the workability, not only of what you are showing us illustratively…,” the bench said.
“May I bring to your attention section 21A, which is very specific, and is within the Special Marriage Act. Because if we have to make some provision of reading in under that Act, we have to make it consistent with the other provisions,” Justice Bhat said, adding, “The remit of this is very clear that you will revert to personal laws.”
The bench also said there is no denying that there is a link between the Special Marriage Act and personal laws.
During the day’s hearing, the bench heard the submissions advanced by several senior advocates, including Geeta Luthra, Anand Grover, Jayna Kothari, Guruswamy and Kirpal, who appeared for the petitioners.
The hearing, which would continue on Wednesday, witnessed two judges — Justices Kaul and Bhat — joining the proceedings virtually.
While hearing the arguments on April 20, the apex court had said it may be redefining the “evolving notion of marriage” as the next step after decriminalising consensual homosexual relationship will imply that same-sex people could live in a stable marriage-like relationship.
It had pondered over whether the relationship between a man and a woman is so fundamental to the Special Marriage Act that substituting them with the term “spouses” will amount to redoing the legislation.
Elaborately referring to its 2018 judgment that decriminalised consensual gay sex, the top court had said it led to a situation where two consenting homosexual adults can live in a marriage-like relationship and the next step could be to validate their relationship as marriage.
During the hearing on April 19, the apex court had said the State cannot discriminate against an individual on the basis of sexual characteristics over which the person has no control.
It had asserted that the Centre has no data to back up its claim that the concept of same-sex marriage is “elitist” or “urban”.
On April 18, the bench had made it clear that it will not go into personal laws governing marriages while deciding these pleas and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not “an absolute based on genitals”.
The Centre, in one of its affidavits filed in the apex court, termed the petitions a reflection of an “urban elitist” view for the purpose of social acceptance and said the recognition of a marriage is essentially a legislative function that the courts should refrain from adjudicating.
[ad_2]
#Samesex #marriage #Parliament #power #legislate #courts #asks
( With inputs from www.siasat.com )

April 25, 2023
Same-sex marriage recognition will impact socio-cultural beliefs: Bar Council

[ad_1]
New Delhi: The Bar Council of India (BCI) on Sunday in its joint meetings with State Bar Councils showed great anxiety and serious concern over a batch of petitions presently examined by the Constitution Bench of Supreme Court pertaining to ‘marriage equality rights for LGBTQAI+ community’.
Bar Council of India Resolution said the Joint meeting is of the unanimous opinion that in view of the sensitivity of the issue of same-sex marriage, having a spectrum of stakeholders from the diverse socio-religious background, it is advisable that this is dealt with after an elaborative consultation process involving different social, religious groups by the competent legislature.
“Considering the socio-religious structure of the country, we thought it (same-sex marriage) is against our culture. Such decisions would not be taken by courts. Such moves must come from the process of legislation,” Bar Council of India chairman Advocate Manan Kumar Mishra told ANI.

The Resolution said as per documented history, ever since the inception of human civilization and culture, marriage has been typically accepted and categorized as a union of biological man and woman for the twin purpose of procreation and recreation. In such background, it would be catastrophic to overhaul something as fundamental as the conception of marriage by any Law Court, howsoever well-intentioned it may be.
According to BCI, more than 99.9 per cent of people in the country are opposed to “the idea of same-sex marriage”. The vast majority believes that any decision of the Apex Court in the petitioners’ favour on this issue will be treated to be against the culture and socio-religious structure of our country, the Resolution stated.
It further said Bar is the mouthpiece of the common men and, therefore, this meeting is expressing their anxiety over this highly sensitive issue. “The Joint Meeting is of the clear opinion that if the Supreme Court shows any indulgence in this matter, it will result in destabilizing the social structure of our country in the coming days. The Apex Court is requested and expected to appreciate and respect the sentiments and mandate of the mass of the country,” Bar Council Resolution said.
There is no gainsaying that the issue at hand is highly-sensitive, commented upon and criticized by various sections of society, including socio-religious groups, for being a social experiment, engineered by a selected few. This, in addition to it, being socially and morally compunctive.
The responsibility of lawmaking has been entrusted to the legislature under our Constitution. Certainly, the laws made by the legislature are truly democratic as they are made after undergoing thorough consultative processes and reflect the views of all sections of society. The legislature is accountable to the public, said BCI Resolution.

The Joint Meeting of the State Bar Councils and the Bar Council of India while appreciating the step of the Supreme Court for starting this sensitive conversation having long-term societal ramifications, resolved to request the Apex Court that the issue at hand be left for the legislative consideration, who after the wide-ranging consultative process, may arrive at an appropriate decision, as per the societal conscience and mandate of the people of our country.
The Constitution Bench comprising the Chief Justice, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha is dealing with a batch of petitions pertaining to ‘marriage equality rights for the LGBTQI+ community’.
The Constitution Bench started hearing the petitions on April 18.
Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. The Centre has opposed the petitions. One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQ+ community to marry any person of their choice.
According to the petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that “The exercise of which ought to be insulated from the disdain of legislative and popular majorities”.
The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.
[ad_2]
#Samesex #marriage #recognition #impact #sociocultural #beliefs #Bar #Council
( With inputs from www.siasat.com )

April 23, 2023
Same-sex marriage: Hearing on April 24 postponed

[ad_1]
New Delhi: The Supreme Court Constitution Bench will not be hearing various petitions seeking legal recognition of same-sex marriage on Monday due to the indisposition of two judges who are part of the five-judge bench.
Five Judge Bench headed by Chief Justice DY Chandrachud on Thursday announced that the constitution bench will hear the various petitions seeking legal recognition of same-sex marriage from Monday to Friday.
But the SC has now notified that on account of the indisposition of Justice Sanjay Kishan Kaul and Justice S Ravindra Bhat, it will not able to hold the court on April 24.

The Constitution Bench comprising the Chief Justice, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha is dealing with a batch of petitions pertaining to ‘marriage equality rights for LGBTQAI+ community’.
The Constitution Bench started hearing the petitions on April 18.
Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. The Centre has opposed the petitions. One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQ+ community to marry any person of their choice.
According to the petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that “The exercise of which ought to be insulated from the disdain of legislative and popular majorities”.
The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.

Subscribe us on
[ad_2]
#Samesex #marriage #Hearing #April #postponed
( With inputs from www.siasat.com )

April 23, 2023