Justice Bhat: This is like two systems of law. Let's understand the background. This is a civil law country where keeping aside the considerations of personal laws, this is more of an issue of classification.
Justice Bhat: This is that kind of situation where there is a pre existing statutory platform. What is not very clear is when was this law enacted?
Justice Bhat: There was a separate body of law which formulated the civil relationships to be registered. So first there was a body of law like in England. In England also there were civil partnerships from 2004.
Luthra refers to an Austrian and a South African judgment.
Luthra: I will now show 3-4 judgments which are court led recognitions of same sex marriage. The issue that was raised was should it be by court or parliament. The constitutional duty of this court is to uphold constitution.
Luthra: Every right flows actually out of this old institution which is recognised and has been reverred in our country. We can't just wipe it clean by saying it means nothing.
Luthra: Even if it is one person, even if it is one minority, we cannot deny them their rights. These rights include their rights of visas, passports, of right to live in India, rights of inheritance...
Luthra: 12 out of the G20 countries including the EU have permitted same sex marriages. About 34 countries of the world have done that. Virtually, every democratic, progressive country of the world has recognised same sex marriages. We cannot be behind.
Luthra: Constitutional comity, the fundamental rights, require not just comity of nations. There has to be a constitutional comity. India cannot be lagging behind.
Luthra refers to the Yogyakarta Principles.