Individual's right to adopt not affected by marital status: Supreme Court in same-sex marriage case [Day 9]

The National Commission for Protection of Child Rights (NCPCR) on Wednesday told the Supreme Court that there is no legal recognition of same-sex marriage and that only heterosexual marriages provide stability for children. [Supriyo and anr v. Union of India].A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha was hearing arguments of Additional Solicitor General (ASG) Aishwarya Bhati, who appeared for the national child rights body. Arguing that the welfare of children is paramount and cannot be subject to any uncertainty, the ASG said,"Please see the legitimate state interest in ideal mode of child rearing. A child can only be naturally born through a heterosexual couple and thus recognition of heterosexual marriage cannot be seen differently from the child birth...Human child is one of the most helpless child in nature and needs all-pervasive car. Thus mothers are protected through legislation. Adoption is not an alternative for child birth."Even heterosexual married couples have to show two years of stable relations to be eligible for adoption, she added..The CJI then remarked,"That individual right to adopt is not affected by the marital status of the individual. Can we summarise (NCPCR's arguments as) that there is no recognition of same-sex marriage? There is no recognition of a same-sex couple to adopt since stability would exist according to you in a heterosexual marriage."The ASG reiterated that children cannot be made to suffer."If spouse is read in Special Marriage Act, children will suffer the most, it cannot even be fathomed. But they will suffer; the entire architecture of this court's judgment and statutes has been from the prism of the child and no one else."There are areas reserved for women, like separate welfare rooms, washrooms, jails etc, and if these spaces are diluted, then the cause of women's equality will be compromised, she stressed..Justice Bhat, after the ASG concluded her submissions, flagged the fact that while 30,000 parents are registered as prospective adoptive parents in the Central Adoption Resource Authority (CARA) database, only 1,500 children are in the pool for adoption..Today was the ninth day of arguments in the batch of pleas seeking legal recognition of same-sex marriage. Counsel for the respondents concluded their submissions today, while the petitioners made their rejoinders..Senior Advocate Atmaram Nadkarni for one of the intervenors argued that recognising same-sex marriage was an attack on the institution of marriage. "India has not reached that level that a union of this kind can be allowed."Advocate Manisha Lavkumar Shah, appearing for the State of Gujarat, argued that any recognition of same-sex unions without a regulalatory regime in place would be 'improper'."What will happen to prohibited relationships etc then? Petitioners saying Parliament will not look into it is not correct. Ordinarily the Court will leave it to Parliament.".Advocate J Sai Deepak for a rights body said that the petitioners may have a cause, but not a case. "When there are issues of legislative competence, there are powers under Article 111 of the Constitution, there are multiple stakeholders. Even with respect to the Special Marriage Act, society has a right to participate. Judicial mechanism cannot be a substitute to any of the steps in the parliamentary process."Those who represent the normative attitudes of society cannot be circumvented by resorting to judicial intervention, he stressed."The Yogyakarta Principles leave it to the countries to decide if they want to recognise such marital unions. If judicial intervention is allowed in this case, then what happens in the future has to be seen.".Advocate MR Shamshad for Muslim Personal Law Board submitted that recognition of same-sex marriage will affect religious institutions governed by personal laws."What if a same-sex couple goes to the Haj Committee and says that they want to go for Haj together?".Biju Janata Dal Rajya Sabha Member of Parliament and Advocate Sasmit Patra stressed that without delving into personal laws, the current matter cannot be taken up."42 laws will be affected. 118 amendments will be needed dealing with 19 laws...Would it not be befitting for something like this to be sent to Parliament> How do we execute this declaration? ... Here declaration may be there but public policy precept on ground will be different, leading to contempt notices."Advocate Shashank Shekhar Jha argued that marriage is not a private affair, but a social one.Notably, Advocate Anston Thomas sought the CJI's recusal from the matter, which the Bench rejected..Appearing for the Central government, Solicitor General Tushar Mehta pointed out that any declaration recognising same-sex unions would be binding on everyone in the country."We knew about the judgment in the baker's case [before the United States Supreme Court] where he refused to bake a cake in a same-sex marriage case and he was prosecuted. And then a pastor refused to solemnise it and they had to bring a Pastor Protection Act. Suppose this Court brings a declaration and suppose a couple goes to a priest and he refuses to solemnise the marriage as they are same sex, would the priest not be in contempt?"Justice Bhat then noted that the the form and contour of any declaration would be important. .Rejoinder submissions by petitioners.Making rejoinder submissions on behalf of the petitioners, Senior Advocate Abhishek Manu Singhvi stressed that the relief sought is workable around the idea of marriage equality, and does not need creation of new social institutions."We seek right to access on equal terms. In a nutshell, this case is about implementing an existing law in a non-discriminatory fashion without any judicial surgery."The SG during the course of such submissions said that the aspect of mandatory public notices under the Special Marriage Act (SMA) could not be challenged in current proceedings.Singhvi then asked the bench,"Was the Navtej Johar judgment [decriminalising gay sex] not a value judgment?"The CJI replied in the negative, with Justice Bhat adding,"You are not taking it head on. You have to say that classification is not correct. But, you are not going that far because you have no locus, otherwise say strike down. Just artful arguments."Singhvi refuted the contention of having no locus..Justice Bhat then asked if the classification made under the SMA, limiting unions to heterosexual couples, is illegal.Singhvi opined that same-sex unions can become legal on interpreting the terms in SMA as 'spouse' instead of 'husband' or 'wife'."But there was never any challenge to the classification," Justice Kohli pointed out. The CJI weighed in saying,"What you would then seek is expansion of the very class of marriage to incorporate the same-sex union. So, in a way to read down the SMA, we would say that any notion of marriage between heterosexual union is unconstitutional?! Can we go so far to say this? You will also not take it that far."Singhvi concluded that the number of queer people have gone up, and that they deserve a secular agnostic platform that heterosexuals enjoy.The CJI touched on questions of intestate succession, and said that the word 'widow' could not be read by courts as depending on agreement between parties."This will open a minefield of future litigation."Justice Bhat quipped,"So, we are not reading in, we are not reading up, we are not striking down, not upholding.".Senior Advocate and former Attorney General Mukul Rohatgi said that if not under SMA, a declaration was needed allowing same-sex couples to marry..The submissions are set to conclude tomorrow, when judgment will likely be reserved..[Watch the entire hearing here].[Follow our live-coverage of the hearing].Follow our detailed coverage of Day 1 of the hearing here and here.Follow our detailed coverage of Day 2 of the hearing here and here.Follow our detailed coverage of Day 3 of the hearing here and here.Follow our detailed coverage of Day 4 of the hearing here and here.Follow our detailed coverage of Day 5 of the hearing here and here.Follow our detailed coverage of Day 6 of the hearing here and here.Follow our detailed coverage of Day 7 of the hearing here and here.Follow our detailed coverage of Day 8 of the hearing here and here.Read about the 20 petitions seeking legalisation of same-sex marriage here.