Rohatgi: Also in NALSA, while dealing with transgenders (persons), there are passages after passages, that if you have to give them equality, the equality must be reflected positively.
Rohatgi: Your lordships have accepted the definition in Anuj Garg- which has accepted sex to mean sexual orientation. Sex doesn't only mean male or female.
Rohatgi: We are getting older. We also want respectability of marriage. Today what is the position? These people- call them queer, gay- if they go to places, people look at them. That is a restriction, infringement of my right under A 21
Rohatgi: In Navtej, Sayara Bano, Puttaswamy- it was held that the court need not wait for legislative interference and if it is bought to the court's notice that my fundamental rights are being restricted, the court's duty is to act.
Rohatgi: You can't keep changing definitions, the law. So you have "unless the context otherwise requires".
Rohatgi: Hindu marriage act, yes but main point is Special Marriage Act.
CJI DY Chandrachud: And then step two, this can also find recognition with an appropriate reading to Special Marriage Act. So you're not going into broader issue of personal laws.
Rohatgi: No, I'm not.
CJI DY Chandrachud: So your analysis is two step- one, declaration of marriage as a fundamental right has been implicit in the constitutional guarantee of 14,19,21.
Rohatgi: Constitution is a living document. The preamble says "equality, fraternity".
Rohatgi: Concept of marriage has changed over last 100 years. Earlier we had child marriages, temporary marriages, a person could marry any number of times - that also changed. There was a lot of protest to the new avatar of Hindu marriage act.