Marriage Equality Case | Senior Advocates Kapil Sibal & Arvind Datar Oppose Supreme Court Giving Legal Recognition For Same-Sex Marriages

The Supreme Court Constitution bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha continued hearing the marriage equality petitions today. This article provides with the arguments raised by the respondents' counsels- Senior Advocate Kapil Sibal and Senior Advocate Arvind Datar in the matter. The arguments raised by Senior Advocate Rakesh Dwivedi can be found here.

Cannot equate a practice with sanction of society for hundreds of years with queer marriage: Senior Advocate Kapil Sibal

Senior Advocate Kapil Sibal, appearing for Jamiat-Ulema-i-Hind, argued that seeking a declaration to legally recognise queer marriages and equalising it with heterosexual marriages on the premise that the parliament was not likely to pass laws in this regard was a wrong step forward. Stating that any law which was pursuant to "a tectonic shift in societal values" required public discourse which included discourse inside Parliament, in families, and in the society, he argued that once such a declaration is made by the court, there would be no scope of debate in the parliament. He then argued that it was not within the domain of the court to pass such declarations. To this, CJI DY Chandrachud remarked–

"The court has in the past has issued declarations. For instance, the Right to clean environment or the Right to Education. The right for primary education found expression in the Right to Education Act. Therefore, at the core, to say that the court cannot issue a declaration would not be correct."

Sibal then contended that marriage was ultimately a union or a social phenomenon which thus far dealt solely with heterosexuality. He said–

"Heterosexual marriage is still a marriage but a marriage which gained acceptability for centuries. The sexual union between people who are homosexuals is still a union. They have a sexual identity which is separate. It is involuntary, not a matter of choice. We're not talking about sexual orientation here. We're talking about a sexual union which we're trying to give that a name. They may consider that this is my marriage. Who can stop that? Nobody. The moment you say that you must recognise it- that's the problem."

He argued that acceptance had to be gained on three levels- first by individuals, then by the family, and then by the society. Marriage between heterosexual couples stood the test of time because it had acceptance on all three levels. He added–

"If you look at the institution of marriage as an organic evolution of custom, you will realise that its roots are in the concept of societal standards and morality. Why can't you marry your son's widow? It has nothing to do with blood relations. Because it has something to do with standards which the state recognises. You can't equate a practice that has had the sanction of society for hundreds of years with this."

He contended that other cases where the court had framed guidelines such as the Vishakha guidelines were all procedural guidelines and not substantive law. Thus, framing guidelines in present matter should be left to the parliament. He also stated that while minority opinions were protected from institutional discrimination, they could not demand as a right that they be accorded a status that shall only be conferred by legislature. Furthering his submissions, he added that foreign judgements qua same sex marriages were delivered in the context of socio-cultural environment of the relevant country and thus, they could not influence decision making process in India. Sibal concluded his submissions by stating–

"In a way this moment should be celebrated - that your lordships are dealing with the reality of the situation. But that celebration must not result in an overreach. Though it must recognise the reality and set systems in place for the state to move forward. Without moving forward, many of these people would be discriminated against. How it is to be done etc - that the government can ponder over it. But as per me, what they've asked for is not a fundamental right. What they must get is something short of it but something that is meaningful."

Validity of old laws cannot be tested on basis of new rights: Senior Advocate Arvind Datar 

Senior Advocate Arvind Datar argued that once the court declared that there existed a fundamental right to marry that would mean that future legislation could not transgress the same and that in turn would mean that parliament could not debate upon it either. He then stated that most petitions challenged laws which were created for different purposes. He argued–

"The proposition I'm making is that if a law has been made to solemnise inter faith marriages, the validity of that law made in 1954 cannot be tested on the ground that it doesn't provide recognition of same sex marriage. It must be tested on the object of what the parliament made it for, the stated object. These are newly recognised rights. You cannot strike down a 1954 law on the basis of some rights that come later."

To this, CJI DY Chandrachud remarked–

"And there's another reason- if you strike down a law on ground that it is under-inclusive, that will not result in creation of a law which is broadly inclusive. That's what happened in the petition for ages of men and women to marry. The answer was simple- if we strike down 18 as age of women to marry, you won't have any law on subject at all. That's why under inclusive law is not struck down. Over inclusive law can be struck down because it is treating unequals equally."

After stating that the law could not be struck down, Datar argued that the prayers stating that replacing words here and there would get the solution could also not be accepted. He said–

"If you accept that, you're completely altering the fabric which is not permissible. If your lordships take Vishakha- Vishakha was guidelines but the Union of India accepted those guidelines. Take triple talaq...This is a concept of collaborative governance where Supreme Court makes a declaration, filling up a vacuum. If union supports, it's collaborative governance. But if the union is opposed to it, those guidelines should not be. My submission is that the SMA, the HMA- are very clearly cast. None of them call for the exercise of reading down, adding words or updating constructions."

Finally, he stated that while judgements in Navtej Singh Johar, Shafeen Jahan, and Joseph Shine were mono-centric, this was a polycentric dispute where a large number of provisions would be involved. "One cannot predict what will be the side effect or collateral damage or impact on other statutes," he added. Concluding his arguments, he said–

"Decriminalisation of homosexuality was a historic moment. It would be a jewel in the crown of Supreme Court. It's a huge impact of reading down a biblical based law which was anachronist to constitutional democracy. But my humble submission is, making that declaration is the constitutional border of the judiciary. What rights same sex couples have- that is in territory of legislature. If your lordships now wants to answer the prayers, it'll amount to judicial retrofitting. The definition of retrofitting is to fit a new component into an old machinery. The recognition of same sex couples is a newly recognised right. It would be dangerous if these new found rights are retrofitted into old statutes."

The arguments will continue tomorrow.