Tag: Constitutional law

Article 370 hearing concludes, Supreme Court reserves verdict

Many petitions also challenged the Jammu and Kashmir State Reorganization Act, by which the state was bifurcated into two Union territories in 2019.

Many petitions also challenged the Jammu and Kashmir State Reorganization Act, by which the state was bifurcated into two Union territories with effect from October 30, 2019 (HT Archive)

Following a marathon hearing spanning over 16 days, the Supreme Court on Tuesday reserved its verdict in a clutch of petitions that have challenged the August 2019 abrogation of Article 370, which granted special status to Jammu and Kashmir, and the subsequent restructuring of the state into two Union territories.

The Constitution bench that heard and reserved the matter comprised Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant.

The hearing commenced on August 2 after a hiatus of over three years, with its last listing dating back to March 2020 when a five-judge bench declined to refer the matter to a larger bench. The reference was sought on the grounds that two previous judgments of the apex court were conflicting with each other, but the bench did not agree with this contention.

The final leg of the proceedings in the matter witnessed extensive arguments and discussions with the petitioners buttressing on the permanent nature of Article 370 and thus, the special status of J&K while the Centre and other respondents emphasising that the provision was always meant to be temporary and that its abrogation was the ultimate step towards complete integration of J&K with the Union of India.

Senior advocate Kapil Sibal spearheaded the legal submissions on behalf of the petitioners in the case, followed by a strong line up of other senior counsel, including Gopal Subramanian, Rajeev Dhavan, Dushyant Dave, Zafar Shah, CU Singh and Gopal Sankaranarayanan.

While some petitioners brought up the requirement of consent from the constituent assembly for abrogation of Article 370, others questioned the validity of the President’s rule that was in effect when the abrogation was made. A few of these pleas went back to the Instrument of Accession, while some highlighted the Supreme Court’s ruling of 2018 that observed that Article 370 had gained a status of permanence.

Source: https://www.hindustantimes.com/india-news/supreme-court-reserves-verdict-on-article-370-abrogation-and-j-k-restructuring-petitions-after-16-day-hearing-101693941178558.html

 

‘Notion of man, woman not based on genitals,’ says SC on legal validation of same-sex marriage

The Supreme Court has started hearing arguments on the validity of same-sex marriage in India.

The Supreme Court of India on Tuesday heard pleas seeking legal validation for same-sex marriages. The five-judge constitution bench headed by Chief Justice D Y Chandrachud made it clear that they would not go into personal laws governing marriages while deciding the case. Instead, they asked lawyers to present arguments on the Special Marriage Act, a law that provides a legal framework for the marriage of people belonging to different religions or castes.

What did the court say?

The bench deemed the issue “complex” and said that the notion of a man and a woman is not “an absolute based on genitals.” Therefore, the Special Marriage Act, which refers to “man and woman,” is not restricted to genitals. The bench stated that personal laws would be kept out of the equation, and all lawyers would address the Special Marriage Act.

“It is not the question of what your genitals are. It is far more complex, that’s the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals,” said the bench, which also comprised justices Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

Noting the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if same-sex marriages are considered valid, the bench said, “Then we can keep the personal laws out of the equation and all of you (lawyers) can address us on the Special Marriage Act (a religion-neutral marriage law).”

Tushar Mehta vs Supreme Court argument:

Not getting into personal law: The Solicitor General Tushar Mehta, who appeared for the Centre, referred to laws on transgenders and said that there are several rights such as the right to choose partners, privacy, right to choose sexual orientation, and any discrimination is criminally prosecutable. “However, the conferment of socio-legal status of marriage cannot be done through judicial decisions. It cannot even be done by the legislature. The acceptance has to come from within the society,” the top government law officer said.

He said the problem will arise when a person, who is a Hindu, wants to avail the right to marry within the same sex while remaining a Hindu.

“Hindus and Muslims and other communities will be affected and that is why the states should be heard,” the law officer said.

Responding to Mehta’s argument, the bench said, “We are not going into the personal laws and now you want us to get into it. Why? How can you ask us to decide it? We cannot be compelled to hear everything.”

Then this will amount to “short circuiting” the issue and the Centre’s stand is not to hear it all, Mehta said, to which the CJI responded: “We are taking a middle course. We don’t have to decide everything to decide something.”

‘Man and woman is not restricted to the genitals’: On being pointed out that even the religion-neutral Special Marriage Act has the term ‘man and a woman’, the bench said it is not the question of “genitals” and the very notion of the special law having “man and woman” is not restricted to the genitals.

Mehta cited it is restricted to the genitals and added there were several laws which the court will be making redundant inadvertently if it chose to give legal backing to same-sex marriages. He cited the Code of Criminal Procedure’s provision that women cannot be examined after a certain time and suggested that a man could claim not to be a man despite having male genitals.

Source: https://www.livemint.com/news/india/notion-of-man-woman-not-based-on-genitals-says-sc-on-legal-validation-of-same-sex-marriage-11681817115313.html

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