19th April, 2024 proceeding
The second day hearing began with the Central government urging the bench of judges to consider the viewpoints of the state since marriage falls in a concurrent list. Solicitor General Tushar Mehta put forth the document stating that Union Of India has written to all the states that their views will be heard.
Swiss Ribbons Pvt. Ltd. v. Union of India
The senior advocate, Mr. Rohatgi, argued that even though the subject matter of the law falls under the concurrent list, the states need not be joined as parties to the case. He cited a previous case involving insolvency where states were not joined, even though it was a concurrent subject. In the case of Swiss Ribbons Pvt. Ltd. v. Union of India, which was decided by the Supreme Court of India in 2019, the constitutionality of the Insolvency and Bankruptcy Code, 2016, which is a central law, was challenged. The subject matter of insolvency is a concurrent subject, which means that both the central government and the state governments have the power to make laws on it. However, in that case, the states were not joined as parties to the case, and the Supreme Court ultimately upheld the constitutionality of the Insolvency and Bankruptcy Code, 2016.
Role of Personal Law
The proceeding further went on to discuss the need to consider the implications of personal laws when making decisions about certain legal matters. Some laws, such as the Payment of Gratuity Act, Motor Vehicles Act, and Juvenile Justice Act, currently only provide certain benefits to married individuals, which can be discriminatory towards those who are in same-sex relationships or choose not to get married.
Senior Advocate Rohatgi argues that the law should be secular and not touch personal laws in order to avoid such discrimination. Justice Bhat responds by saying that personal laws cannot be completely ignored, as they also play a role in such matters. He suggests that the court needs to consider the issue as a whole and not in a truncated manner, and that people should have the option to choose a civil form of marriage if they do not want to follow their personal laws.
Government contradicting SMA
Senior Advocate Singhvi then points that the Indian government is being inconsistent in its approach to marriage by only considering certain types of marriages as socially and culturally ingrained, while ignoring the existence of the Special Marriage Act, which was created as an alternative to such marriages. He suggests that the government is contradicting itself by focusing on only specific types of cultural and social barriers when the whole point of the Special Marriage Act was to provide an alternative to societal barriers. It also fails to consider that society has evolved along with the barriers.
Concluding remarks
The Chief Justice DY Chandrachud stated that the state cannot discriminate against individuals based on characteristics that they do not have control over, and that it is not accurate to view same-sex marriage as an urban elitist concept. Senior Advocate Singhvi has argued that the Special Marriage Act, which is a non-religious mode of marriage, can be agnostic to sexual orientation as well.
Senior Advocate Singhvi also argues that the right to express one’s gender identity is a part of free speech and should not be restricted in any way, but the government’s failure to recognize and protect this right is seen as a restriction. The Chief Justice of India responds that the government’s inaction is not a statutory restriction, but rather a failure to enact a law.
The day 2 proceedings come to an end.
