1

IN THE SUPREME COURT OF INDIA

ORIGINAL WRIT JURISDICTION
T.C (C) No. 12 of 2023
IN THE MATTER OF:
ZAINAB J. PATEL …PETITIONERS
v.
UNION OF INDIA AND ANR. …RESPONDENTS

SUBMISSIONS OF MR. K.V. VISWANATHAN, SR. ADV.

APPEARING ON BEHALF OF THE PETITIONER

Submitted By:
Mr. K.V. Viswanathan, Senior Advocate

Assisted By:
Ms. Tara Narula, Advocate
Mr. Rahul Sangwan, Advocate
Mr. M.G. Aravind Raj, Advocate
Mr. Sivagnanam Karthikeyan, Advocate
Mr. Siddharth Sridhar, Advocate
Mr. Navjot Singh, Advocate
Mr. Karthik Sundar, Advocate
Ms. Aparajita Sinha, Advocate
Ms. Sonal K. Chopra, Advocate
Ms. Shivangi Sharma, Advocate
Filed on __.04.2023
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INDEX TO SUBMISSIONS ON BEHALF OF MR. K.V. VISWANATHAN SR. ADV.

I. NORMATIVE GOOD IN MARRIAGE AND CHOICE .............................................................. 3

II. MARRIAGE CANNOT AND OUGHT NOT BE AN EXCLUSIVE HETEROSEXUAL PRIVILEGE–

EQUALITY MANDATES THAT ONLY ONE FORM CANNOT BE DETERMINATIVE ......................... 6

III. PROCREATION AND CHILD-REARING IS NOT THE SOLE PURPOSE FOR MARRIAGE AND

CONCERNS RELATING TO ADOPTION ALSO MISPLACED ........................................................... 9

IV. “FUNDAMENTAL RIGHTS MAY NOT BE SUBMITTED TO VOTE; THEY DEPEND ON THE

OUTCOME OF NO ELECTIONS”. ............................................................................................... 15

V. TO SAY THAT ‘HETEROSEXUAL MARRIAGES ARE THE NORM AND ARE FOUNDATIONAL
TO EXISTENCE OF THE STATE’, RINGS A SIMILARITY TO THE THEORETICAL UNDERPINNINGS

OF MISCEGENATION STATUTES. .............................................................................................. 18

MISCEGENATION STATUTES .................................................................................................. 18

INTER-CASTE/INTER-RELIGIOUS MARRIAGES IN INDIA ........................................................ 22

VI. UNION OF INDIA’S ‘SEPARATE BUT EQUAL’ ARGUMENT ................................................ 23

VII. OPPOSITION TO SAME-SEX MARRIAGES AS POLITICS OF ‘DISGUST’ ............................... 26

VIII. RE: THE TRANSGENDERS PERSONS (PROTECTION OF RIGHTS) ACT, 2019 [TG ACT]
29

CHILDREN OF TRANSGENDER PERSONS MAY FACE THE POSSIBILITY OF BEING OSTRACIZED AND
OTHERED BY SOCIETY. .......................................................................................................... 32

THE STATE CANNOT RENEGE ON THEIR OBLIGATION TO ASSIMILATE TRANS-PERSONS INTO

MAINSTREAM SOCIETY BY BEING SELECTIVE IN SUCH INCLUSION.......................................... 33

INDIAN COURTS ON THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ..... 33

IX. CONSTITUTION IS A LIVING AND TRANSFORMATIVE DOCUMENT OF PROGRESSIVE

RIGHTS .................................................................................................................................... 35

X. ON RELIEFS ...................................................................................................................... 39
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I. NORMATIVE GOOD IN MARRIAGE AND CHOICE

1. That marriage as an institution is foundational to the existence of the state structure and forms
a fundamental unit of society is a premise that is undisputed. Philosophers, jurists and Courts
across the globe have reiterated and reinforced the idea that marriage lies at the core of the
societal framework. In fact, the Union of India in its pleadings before this Hon’ble Court has
supported the said framework – it seeks to stand as a sentinel guarding the selective entry into
the institution which it deeply reveres.

2. What is peculiar, however, is the vehemence with which the Union of India seeks to maintain
this ‘foundational institution’ as one that merely adheres to hetero-normative underpinnings.
To that end, the Union has contended that while some ‘unions’ or ‘personal understandings of
relationships’ between individual members [which would include LGBTQIA+ couples] are not
unlawful, it cannot however be given the legal recognition of marriage [Para 33 of the
Counter Affidavit]. Further, it is stated that the while autonomy, freedom/choice of sexual
orientation are recognised as rights under the Constitution [Para 7 of Additional Affidavit of
the Union of India], this would not automatically infer the existence of the right to marry. In
effect, the Union seeks to contend that the normative good from marriages is to be restricted to
heterosexual unions while other lawful unions such as those involving persons like the
Petitioner would have to be content with the limited rights being made available to them.

3. The preliminary but pertinent question that arises for determination by this Hon’ble Court is,
therefore, as to why the institution of marriage is so revered and why the Petitioner herein and
other similarly situated persons want the CHOICE to be able to either enter or exit the
institution of marriage.

4. The question that arises for consideration of this Hon’ble Court is that why do people such as
the Petitioner similarly situated persons seek to come within the fold of marriage? The simple
answer to this question lies in the existence of CHOICE to either enter, not enter or exit the
institution of marriage. Regardless of all the positives or negatives, rights/responsibilities that
flow from marriages, the choice to either enter or exit the fold of marriage must, by all means,
be available to two consenting adults of the same gender.

5. The normative good that these individuals look for in marriage, which compels them to beseech
this Hon’ble Court to recognise their union, is something that goes to the core of an individual’s
existence in society. While the Union of India might term these thoughts as ‘urban, elitist’ ones,
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the fact exists that the benefits that socially occurs through the institution of marriage are
fundamentally and intrinsically linked to the way an individual views himself in the social
sphere and this applies across countries, across religions and across social strata.

6. According to Carlos Ball, the full potential of a human being is achieved only when they are
able to combine physical and emotional intimacy. In fact, he refers to this combination of
physical and emotional intimacy as ‘constitutive elements of our personhood’1. Explaining
further on how marriage allows for a person to live life as an ‘extension of her ‘self’’, he argues:

“Through the institution of marriage, society encourages us to be less egoistic, to

live for another person at the same time that we live for ourselves. One of the truly
magical characteristics of love is that it allows for an expansion of the self. When
a person loves another, she begins to see that other as an extension of herself. The
object of love does not prioritize the welfare of the subject over her own as much
as she sees it as an extension of her welfare. Although this kind of deep affection
and commitment can, of course, exist outside of a socially recognized relationship
such as the marital one, commitment “may be more comfortably sustained and
reciprocating love more easily offered where personal feelings are reinforced and
expectations are coordinated by social institutions.” Public recognition of
relationships also makes it clear that there is an identifiable individual (a “spouse”
or a “parent,” for example) whose responsibility it is to care for the well-being of
another. That public recognition, when it is accompanied by social support and
encouragement, makes it more likely that the relevant responsibilities will be met.
The structure that marriage provides, and the obligations that it requires, then, can
strengthen and make more durable the affectional components of sexual intimacy
that are characterized by ongoing commitment and mutuality. The socially
recognized marital relationship can provide the structure through which the well-
being of the partner becomes inextricably linked to the wellbeing of the self as “the
boundary between self and other becomes blurred.” By creating and promoting an
institution such as companionate marriage, our society encourages (though, of
course, by no means guarantees) the kind of self-expansion that most frequently
takes place in committed sexually intimate relationships. This is the potentially
enduring value of a relationship such as the marital one; it potentially allows for

1
Carlos A. Ball, Morality of Gay Rights – An Exploration in Political Philosophy, Routledge (2002)
at S.No. 1, Page 8, 10 of Additional Compilation
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self-definition and self-expansion through love and commitment for another human
being in a relationship whose very purpose is to provide for the satisfaction and
exercise of physical and emotional needs and capabilities in the context of long-
term reciprocity and mutuality.”
[Emphasis Supplied]

7. In the words of the Supreme Judicial Court of Massachusetts in Goodridge v. Department of

Public Health 440 Mass. 309 [S.No. 2, Page 10-53 @Page 15 of Additional Compilation],
marriage allows for a person to fulfil ‘yearnings for security, safe haven and connection that
express our common humanity’. In the modern world that we live in, marriage is all the more
important, as Ball puts it, for our individual selves to have the opportunity and choice to expand
the same and live our lives through connections and bonds we form with another self. Closer
home, this Hon’ble Court in Navtej Singh Johar v. Union of India (2018) 10 SCC 1 [Page
916, Vol. I of Case Law Compilation; Opinion of Chief Justice Dipak Misra] referred to
Homer Clark for justifying the need for ‘emotional companionship’ in the following terms:

“230. With the passage of time and evolution of the society, procreation is not the
only reason for which people choose to come together, have live-in relationships,
perform coitus or even marry. They do so for a whole lot of reasons including
emotional companionship. Homer Clark writes: “But the fact is that the most
significant function of marriage today seems to be that it furnishes emotional
satisfactions to be found in no other relationships. For many people it is the refuge
from the coldness and impersonality of contemporary existence.””
[Emphasis Supplied]

8. It is clear, from a bare perusal of the above, that the normative good that arises from marriage,
are incidents that are not common and applicable only to heterosexual unions. Rather, for the
persons who do seek to enter into the institution of marriage, the very individuality of a person
and the expansion of the individual’s self in the social structure is fundamentally linked to their
ability to obtain public and state recognition under the fold of marriage. Therefore, for the
Union of India to contend that while all other rights of the Petitioner and people like the
Petitioner have been ‘suitably taken care of’ and that consequently marriage isn’t an institution
which ought to be thrown open is to ignore the fundamental good and joy that arises from
marriage.
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9. In fact, to reiterate, what the Petitioner wants is to have the CHOICE to enter the fold of
marriage and with it, take on all the rights and reciprocal duties that flow from it. The State,
under the garb of protecting entry into the institution of marriage, cannot be permitted to either
give or take away such a CHOICE, unless such restriction is shown to be constitutionally
sound. While the State seeks to act as the sentinel that guards the institution of marriage, this
Hon’ble Court as the sentinel on the qui vive guard the rights of the persons such as the
Petitioner and provide for their entry into an institution whose doors have been slammed shut
on the faces of the people like the Petitioner.

II. MARRIAGE CANNOT AND OUGHT NOT BE AN EXCLUSIVE HETEROSEXUAL PRIVILEGE–

EQUALITY MANDATES THAT ONLY ONE FORM CANNOT BE DETERMINATIVE

10. Having established that the normative good in allowing persons to be included within the fold
of marriage is a fact that does enures to the benefit of all couples, be it persons compliant with
heterosexual norms or otherwise, it is then imperative to counter-act the base set by the Union
of India and the States – that the marriage as an institution has remained for centuries and must
continue to remain a ‘heterosexual privilege’. In essence, it has been placed before this Hon’ble
Court that heterosexuals have a form of monopoly over entry into the institution of marriage.

11. That the right to marry is inextricably linked to the Fundamental Rights under Article 14, 15,
19 and 21 of the Constitution of India. It is the humble submission of the Petitioner herein that
the right to marry does form a part of the code of fundamental rights as specified above. Having
said so, the real questions which are posed before this Hon’ble Court read as follows: (I) is not
the equality code violated by restricting marriages to heterosexual unions? and (II) Whether
Union of India is justified in resisting the conferral of the recognition and status of marriage to
consenting lawful unions of LGBTQIA+ couples?

12. The Constitution and the equality code which has been carefully incorporated into its text
requires this citizenry to ensure that all persons who are similarly situated are treated on an
‘even platform’, more so when it relates to sexual orientation. [See K.S. Puttaswamy v. Union
of India (2017) 10 SCC 1 Para 144 at Page 483, Vol I of Case Law Compilation; [Opinion of
Justice D.Y Chandrachud as the Hon’ble Chief then was] and Navtej Singh Johar v. Union
of India (2018) 10 SCC 1 Para 175 at Page 901, Vol. I of Case Law Compilation; [Opinion of
Chief Justice Dipak Misra]. It is humbly submitted that any ‘step-motherly treatment’ which
is sought to be meted out to LGBTQIA+ persons in relation to marriage would be violative of
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the equality code and the failure to protect the rights of this community in line with the
Constitution would ‘reduce their citizenry rights to a cipher’. [See Navtej Singh Johar (supra)
Para 135 at Page 890, Vol I of Case Law Compilation [Opinion of Chief Justice Dipak
Misra]].

13. In Minister of Home Affairs & Anr.. v. Fourie CCT 60/04, the South African Constitutional
Court felicitously explained that the equality does not imply the ‘levelling or homogenisation
of behaviour’ but rather that it lies, at its core, in the ‘acknowledgment and acceptance of
difference’. The Court further explained that equality requires of persons to be able to
‘accommodate the expression of what is discomfiting’ [Para 60 at Page 2036, Vol. IV of
Case Law Compilation]. It is humbly submitted that the Petitioner’s case before this Hon’ble
Court requires a similar conception of equality. The efforts made herein are for social
acceptance and for the citizenry to ultimately ‘acknowledge and accept the difference’ and
to ‘accommodate’ for the existence of LGBTQIA+ persons in the same way in which
heterosexuals lead their lives. The interests of the heterosexual persons and LGBTQIA+
persons ‘do not collide, they co-exist in a constitutional realm based on the accommodation of
diversity’ [Para 98 at Page 2060, Vol. IV of Case Law Compilation]. To restrict the access to
the institution of marriage to heterosexual couples would have the immediate effect of telling
the persons like the Petitioner that they are ‘outsiders’ to the world at large. To that end, in
Fourie it was noted as follows:

“[71] The exclusion of same-sex couples from the benefits and responsibilities of
marriage, accordingly, is not a small and tangential inconvenience resulting from
a few surviving relics of societal prejudice destined to evaporate like the morning
dew. It represents a harsh if oblique statement by the law that same-sex couples are
outsiders, and that their need for affirmation and protection of their intimate
relations as human beings is somehow less than that of heterosexual couples. It
reinforces the wounding notion that they are to be treated as biological oddities, as
failed or lapsed human beings who do not fit into normal society, and, as such, do
not qualify for the full moral concern and respect that our Constitution seeks to
secure for everyone. It signifies that their capacity for love, commitment and
accepting responsibility is by definition less worthy of regard than that of
heterosexual couples.”

[Emphasis Supplied]
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14. It is not disputed before this Hon’ble Court that the consequences of marriage and the benefits
that flow from entering such an institution are aplenty, socially, economically, psychologically
and otherwise. The Union of India has also acknowledged that several socio-economic benefits
and ancillary rights flow from marriage [Para 16-18 of Counter Affidavit]. This being so, the
question posed before this Hon’ble Court is as to the legitimate interest in the State in
preventing the access to the institution of marriage to persons such as the Petitioner.

15. It is humbly submitted that at its core, there is no difference apparent between heterosexual
persons and LGBTQIA+ persons who seek to marry each other [arguments pertaining to
procreation are dealt with under Heading IV]. To subordinate LGBTQIA+ persons to
heterosexual persons would be an invidious discrimination and thoroughly violative of the
equality code enshrined in the Constitution. It is submitted that the State in the present case has
not made out any constitutionally sound legitimate state interest which can be pointed out to
prevent the doors of marriage from being thrown open to persons like the Petitioner herein. In
fact, on the contrary, all the submissions made before this Hon’ble Court by the Petitioners
would go to show that there is a legitimate state interest in endorsing and granting the right to
marry for all persons, regardless of sexual orientation.

16. In fact, the Union of India in its affidavit, in trying to argue that it is in compliance with Article
14 has argued that the restriction to marriage is not one that is applicable only to same-sex
couples but that it also restricts certain heterosexual unions [Para 34-36 of Counter Affidavit].
In this regard, it is humbly submitted that the same is a defence which is in the nature of
purported facial equality and ought not to be accepted by this Hon’ble Court. Whereas the
restriction of certain classes of heterosexual persons from being married, such as minors or
other forms of prohibited relationships, directly relate to the State’s power to restrict the said
marriages on the ground of either health or other such acceptable grounds, the restriction in
relation to LGBTQIA+ persons essentially goes to the root of the existence of the persons
themselves. The restriction on the LGBTQIA+ person’s right to marry rest solely upon the
distinction which is borne out of the very choices and sexual preferences of such persons. The
underlying difference is that any heterosexual couple, at the first instance, is not prevented from
entering the field of marriage, merely because of who he/she is individually and what his/her
sexual preference is.
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17. Therefore, any discrimination that is sought to be made by the Union herein which strikes at
the very existence of the persons such as the Petitioner ought to be countenanced by the Court
herein through a purposive reading of the equality code.

III. PROCREATION AND CHILD-REARING IS NOT THE SOLE PURPOSE FOR MARRIAGE AND

CONCERNS RELATING TO ADOPTION ALSO MISPLACED

18. As a part of the legitimate state interest in “protecting” the institution of marriage, the Union
of India has vehemently contended before this Hon’ble Court that procreation lies at the core
of marriages and that therefore heterosexual unions, being ones which enable the attainment of
this core object, are the only ones that can be allowed to enter the fold of the institution. It is
further contended that for centuries together and as a long-standing fact, the propagation of the
human race has been at the centre of human existence and that therefore only heterosexual
unions are recognised for the purpose of marriage.

19. At the outset, it is humbly submitted that, as was seen in Heading I, the purpose and the intent
behind persons intending to get married is for a normative good which goes beyond the
restrictive idea of procreation or rearing of a child. Marriage is considered to be the
ceremonious and momentous event in people’s lives through which a person seeks to bind
oneself to another person in physical, emotional and psychological ways, with the imprimatur
of the State, which allows the person to attain life’s fullest potential. To restrict the
understanding of marriage to the idea of a mere procreative activity is deeply erroneous, viewed
from the perspective of both heterosexuals and LGBTQIA+ persons.

20. In order to indicate the inherent flaw in the argument taken on by the Union of India and other
States, it is important to place reliance on why Martha C. Nussbaum considers this argument
to be one which is ‘two-faced’ and discriminatory. In From Disgust to Humanity,2 while
countering the self-same argument against LGBTQIA+ marriages, she states:

“A second objection, and perhaps the one that is most often heard from thoughtful
people, insists that the main purpose of state-sanctified marriage is procreation and
the rearing of children. Protecting an institution that serves these purposes is a
legitimate public interest, and so there is a legitimate public interest in supporting

2
Martha C. Nussbaum, From Disgust to Humanity – Sexual Orientation & Constitutional Law at
Page 1006, Vol II of Document Compilation – Referred to by this Hon’ble Court in Navtej Singh
Johar (supra), Para 137 at Page 890 Vol. IV of Case Law Compilation
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potentially procreative marriages. Does this mean there is also a public interest in
restricting marriage to only those cases where there may be procreation? This is
less clear. We should all agree that the procreation, protection, and safe rearing of
children are important public purposes. It is not clear, however, that we have ever
thought these important purposes best served by restricting marriage to the
potentially procreative. If we ever did think like this, we certainly haven’t done
anything about it. We have never limited marriage to the fertile, or even to those of
an age to be fertile. It is very difficult, in terms of the state’s interest in procreation,
to explain why the marriage of two heterosexual seventy-year olds should be
permitted and the marriage of two men or two women should be forbidden—all the
more since so many samesex couples have and raise children. If the proposal were
to introduce new restrictions—marriage only for the potentially procreative—it
might make sense, though we’d want to know why the restriction helps the
procreators. But it’s clear few would support such a restriction. We are all more
likely to agree with Milton: marriage is about more than the merely biological. It
is about companionship, conversation, a shared life.

As it stands, then, the procreation argument looks two-faced, approving in

heterosexuals what it refuses to tolerate in same-sex couples. If the arguer should
add that sterile heterosexual marriages somehow support the efforts of the
procreative, we can reply that gay and lesbian couples who don’t have or raise
children may support, similarly, the work of procreative couples”

[Emphasis Supplied]

21. It is humbly submitted that, as seen above, the law and society as it exists today, does not
actively promote or seek to only sustain ‘potentially procreative’ relationships. To take the
Union of India and the States’ submissions to the logical end would be to admit that since
procreation is at the very core of why marriage is valuable, those who are even remotely
incapable of achieving that object cannot be allowed to enter into the fold of marriage. This is
a stand that is not taken by the Respondents in the present case. Therefore, ex-facie it becomes
clear that the projection of the idea of procreative relationships being foundational to societal
structure is merely a cloak under the guise of which the government seeks to exclude persons
such as the Petitioner from getting married.
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22. Further, it is submitted that the ‘deeply demeaning’ nature and fallacy that is inherent in the
argument that procreation is fundamental to marriage and that any relationship which is dehors
the same does not deserve recognition has been fervently rejected by the South African
Constitutional Court in National Coalition for Gay and Lesbian Equality v. Department of
Home Affairs, Case CCT 10/99 : 2000 (2) SA 1 (CC) [S.No. 3, Page 54-143 @Page 104 of
Additional Compilation] where it was held as follows:

“[51] From a legal and constitutional point of view procreative potential is not a
defining characteristic of conjugal relationships. Such a view would be deeply
demeaning to couples (whether married or not) who, for whatever reason, are
incapable of procreating when they commence such relationship or become so at
any time thereafter. It is likewise demeaning to couples who commence such a
relationship at an age when they no longer have the desire for sexual relations. It
is demeaning to adoptive parents to suggest that their family is any less a family
and any less entitled to respect and concern than a family with procreated children.
I would even hold it to be demeaning of a couple who voluntarily decide not to have
children or sexual relations with one another; this being a decision entirely within
their protected sphere of freedom and privacy.”

[Emphasis Supplied]

23. In Obergefell v. Hodges 576 U.S 644 (2015) the United States Supreme Court has also rejected
the idea that procreation lay at the core of marriage by holding that it is not a pre-requisite for
a valid marriage in any State [Page 2418 Vol. IV of Case Law Compilation]. To see marriage
through the narrow lens of mere union for procreation or rearing of child by man and woman
is to demean its value. This Hon’ble Court in Navtej Singh Johar (supra) has also touched
upon and rejected the notion that marriage exists for procreation, as was seen in Heading I of
the present submissions.

24. It is also critical to note that the Petitioner herein has, from the outset, emphasised on the
existence of CHOICE and the exercise of such a CHOICE being one that warrants
consideration. It is submitted that in the context of the present submission, it is in fact an
intrusion on the choice which is available to even a heterosexual couple, whereunder they might
choose not to have a child, as was seen in National Coalition (supra). To hold that the
propagation of population is at the heart of social relationships would, in the humble
submission of the Petitioner, take the social relationships back several centuries and would
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effectively make marriage a government mandated procreation program, under which couples
would be under an obligation to procreate. It may also be noted that there is no statute that
prescribes an upper age of marriage on the basis any assumed notions of capacity or otherwise
to procreate. It is therefore submitted that on a reading of the above-mentioned judgments and
principles, it becomes clear that the argument sought to be made by the Union of India and the
States does not warrant consideration and ought to be rejected by this Hon’ble Court.

25. It has been presented before this Hon’ble Court by the Union of India, the States and the
National Commission for Protection of Child Rights [“NCPCR”] that the ability of persons
such as the petitioner and same-sex couples to adopt and rear a child is under a cloud of doubt
scientifically. In fact, it is sought to be presented before this Hon’ble Court that raising of kids
by LGBTQIA+ people would amount to ‘experimentation’ with such kids and that it would not
be in the interest of children [Para 20 of Intervention Application on behalf of NCPCR].

26. The right to marry, as has been vehemently contended by the Petitioner herein, is fundamental
to providing access to several state-sanctioned institutions and policies. One such benefit that
flows from being able to enter the institution of marriage is the opportunity to establish a stable
family within which the child can be brought up. The fact that marriage is considered to be the
gateway to the establishment of a ‘stable family’ is clear from a bare perusal of the Office
Memorandum dated 16.06.2022 of the Central Adoption Resource Authority [Page 448,
Vol. II of the Documents Compilation]. In the said O.M, the authority has decided that single
applicant in a live-in relationship cannot be considered as a stable family and that therefore
would not be considered for registration with the concerned agencies/authorities. Therefore, it
is reiterated that it is imperative, for the LGBTQIA+ couples be guaranteed the right to marry
in order to enable them to adopt children.

27. To this limited extent, it is humbly submitted that the data and scientific research referred to be
the NCPCR are woefully inadequate, biased and wholly misrepresentative of the reality in
terms of adoption of children are concerned. The Indian Psychiatric Association has, on
03.04.2023 issued a ‘Position Statement’ which categorically stated that homosexuals are to be
treated on par with any other citizen in relation to adoption, while being fully cognizant of the
challenges that a child is likely to face as a result of the stigma from society relating to their
family. It is important to point out that this Hon’ble Court in Navtej Singh Johar (supra) had
previously taken positive cognisance of a similar ‘Position Statement’ from the same
association in favour of de-criminalizing homosexuality [Para 340 r/w Para 636.5 Page 963
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r/w Page 1078, Vol. I of Case Law Compilation]. This apart, the American Psychological
Association has also issued a policy statement opposing discrimination on the basis of sexual
orientation when it comes to adoption3.

28. The fundamental flaw in the view sought to be presented before this Hon’ble Court with regard
to possible negative effects resulting from a prospective adoption by LGBTQIA+ couples is
countenanced by the 118th Report of the Department-Related Parliamentary Standing
Committee on Personnel, Public Grievances, Law and Justice on ‘Review of
Guardianship and Adoption Laws’. The Committee, after noting the need to harmonize the
Hindu Adoptions and Maintenance Act and the Juvenile Justice Act, recommended that a
comprehensive, secular legislation be enacted which should cover the LGBTQ community
[Page 28-29, Volume III, Documents Compilation]. This recommendation, in and of itself,
exposes the stand taken by the Union of India and reinforces the submission of the Petitioner
herein that there is no reasonable or justifiable ground made out to justify the supposed fears
posed before this Hon’ble Court.

29. In Hawaii, on a suit instituted by same-sex couples seeking to marry, the Supreme Court had
remanded the matter to the Trial Court with a direction to take on evidence to indicate whether
there was a compelling state interest in abridging the right to marry. To that end, the Circuit
Court of First Circuit in Ninia Baehr v. Lawrence H. Miike, Civil No. 91-1394 [S.No. 6,
Page 174-196 @Page 191-193 of Additional Compilation] embarked upon the task of
collecting empirical and scientific data to arrive at a conclusion favouring adoptions by same-
sex couples:

“125. The evidence presented by Plaintiffs and Defendant establishes that the single
most important factor in the development of a happy, healthy and well-adjusted
child is the nurturing relationship between parent and child. More specifically, it is
the quality of parenting or the "sensitive care-giving" described by David
Brodzinsky, which is the most significant factor that affects the development of a
child.

126. The sexual orientation of parents is not in and of itself an indicator of parental
fitness.

3
See Brief of American Psychological Association and Montana Psychological Association as Amici
Curiae in support of Plaintiff-Appellants, Page 29 in Jan Donaldson v. State of Montana [SC of the
State of Montana] at S.No. 5, Page 145-174 of Additional Compilation
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127. The sexual orientation of parents does not automatically disqualify them from
being good, fit, loving or successful parents.

128. The sexual orientation of parents is not in and of itself an indicator of the
overall adjustment and development of children.

129. Gay and lesbian parents and same-sex couples have the potential to raise
children that are happy, healthy and well- adjusted.

130. Gay and lesbian parents and same-sex couples are allowed to adopt children,
provide foster care and to raise and care for children.

131. Gay and lesbian parents and same-sex couples can provide children with a
nurturing relationship and a nurturing environment which is conducive to the
development of happy, healthy and well-adjusted children.

132. Gay and lesbian parents and same-sex couples can be as fit and loving parents,
as non-gay men and women and different- sex couples.

133. While children of gay and lesbian parents and same- sex couples may
experience symptoms of stress and other issues related to their non-traditional
family structure, the available scientific data, studies and clinical experience
presented at trial suggests that children of gay and lesbian parents and same-sex
couples tend to adjust and do develop-in a normal fashion.

134. Significantly, Defendant has failed to establish a causal link between allowing
same-sex marriage and adverse effects upon the optimal development of children.”

[Emphasis Supplied]

30. It is therefore submitted that the resistance to the potential adoption by same-sex couples is
merely an argument that is based on the discriminatory consideration of the said couples and
does not refer to reliable empirical data to support their contention. The haphazard reference to
the welfare of the child merely in relation to same-sex couples is an argument that does not
warrant consideration of this Hon’ble Court and therefore ought to be rejected as one that is
without any contemporary scientific basis.
 15

IV. “FUNDAMENTAL RIGHTS MAY NOT BE SUBMITTED TO VOTE; THEY DEPEND ON THE

OUTCOME OF NO ELECTIONS”4.

31. Promoting decision making via democratic debates in the parliament is a laudable
governmental interest but it cannot itself justify a law or any policy that would otherwise violate
the Constitution. The present Petition concerns unlawful curtailment of a constitutionally
guaranteed fundamental right. To say that only legislature can decide on recognition of
institution of marriage as a union for the petitioners would be making fundamental rights
subject to the popular will and views of the state. The Hon’ble Supreme Court has held in
Puttaswamy (supra) [Para 144 at Page 483, Vol. I of Case Law Compilation] that:

“[t]he purpose of elevating certain rights to the stature of guaranteed fundamental

rights is to insulate their exercise from the disdain of majorities, whether legislative
or popular.”
Under the Constitution of India, not only is the judiciary empowered to intervene, the
Petitioners respectfully submit that it is the Hon’ble Courts’ constitutional duty to safeguard
the fundamental rights.

32. Fundamental rights are a limitation on the legislative powers of a state and the guarantee of
these rights as enshrined in the constitution is not dependent on the favourable view of the
majority. If any citizen faces a violation of their fundamental rights, they need not wait for the
legislature to legislate upon the said violations - the Hon’ble court as sentinel on the qui vive
would consider itself as its duty to step in and remedy the wrongs caused due to the inaction
on part of the legislature. Citizens of a democracy cannot be compelled to have their lives
pushed into obscurity by a majority view of the elected representatives.

33. The Contention by the Respondents that the question whether a relationship can be formalized
and legally recognized as a marriage is one for the legislature alone to decide and one that can
never be the subject matter of judicial adjudication is against trite position of law that as far as
the enforcement of fundamental rights is concerned the Constitutional Courts do not have to

4
West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) at S.No. 7, Page 197-244 @Page 211
of Additional Compilation
 16

await action by the legislature as held by Hon’ble Justice R.F. Nariman in Navtej Singh Johar
(supra) [Para 352 at Page 967-968, Vol. I of Case Law Compilation] holding that the:

“very purpose of the fundamental rights chapter in the Constitution of India is to

withdraw the subject of liberty and dignity of the individual and place such subject
beyond the reach of majoritarian governments so that constitutional morality can
be applied by this Court to give effect to the rights, among others, of “discrete and
insular” minorities…These fundamental rights do not depend upon the outcome of
elections. And, it is not left to majoritarian governments to prescribe what shall be
orthodox in matters concerning social morality. The fundamental rights chapter is
like the North Star in the universe of constitutionalism in India.”

34. Opinion of the majority of populace or majoritarian government for that matter can never be a
factor to be taken into consideration while deciding on question of fundamental rights of
individuals. If every reform, be it brought by precedents or via legislation to safeguard the
human rights of individuals and strengthen the dynamic constitutional principles, is subjected
to the prevalent views of the majority at that given point of time, society will never be able to
progress. Addressing the opposition against the codification of Hindu Law, Dr. B. R.
Ambedkar had also expressed that opinion of majority in the society is of no relevance while
bringing reforms in the society. He had observed:

“…there is a great deal of public opinion which is opposed to this Bill. I have
certainly not weighed the opinions that we have received but I do like to say this,
that this is hardly a question which we can decide by counting heads. This is not a
question which we can decide in accordance with the opinion of the majority. When
society is in a transitory stage, leaving the past, going to the future, there are bound
to be opposing considerations: one pulling towards the past and one pulling
towards the future and the test that we can apply is no other than the test of one’s
conscience. I have not the slightest doubt in my mind that the provisions of this Bill
are in perfect consonance with the conscience of the community, and I have
therefore, no hesitation in putting forth this measure although it may be as a matter
of fact that a large majority of our countrymen do not accept it.”5

5
Constituent Assembly Debates, C.A. (Leg.) D., Vol. IV, 9th April 1948, pp. 3650-53 at S.No. 8,
Page 245-248 @Page 247-248 in Additional Compilation]
 17

[Emphasis Supplied]

35. It is submitted that petitioners are facing discrimination in all the spheres of society, without
the legal sanctity of institution of marriage having been recognized for them. Recognition of
institution of marriage would be an acknowledgement that LGBTQIA+ couples are as entitled
to be a part of society as heterosexual couples are. The Constitutional Courts of this county
cannot be a mute spectator when the rights of individuals are hampered by the legislature’s
lack of recognition of their rights. This Hon’ble Court speaking through Radhakrishnan, J. in
NALSA v Union of India (2014) 5 SCC 438 [Para 53 at Page 757-758, Vol. I of Case Law
Compilation] has also held that:

“Article 21 has been incorporated to safeguard those rights and a constitutional

court cannot be a mute spectator when those rights are violated, but is expected to
safeguard those rights knowing the pulse and feeling of that community, though a
minority, especially when their rights have gained universal recognition and
acceptance.”

36. Stressing on the aspect of fundamental rights of the individuals not being a subject matter of
debate by the majoritarian government, the United States Supreme Court in Obergefell (supra)
has also held that [Page 2427, Vol. IV of Case Law Compilation]:

“But as Schuette also said “[t]he freedom secured by the Constitution consists, in
one of its essential dimensions, of the right of the individual not to be injured by the
unlawful exercise of governmental power.” Id., at 311. Thus, when the rights of
persons are violated, “the Constitution requires redress by the courts,”
notwithstanding the more general value of democratic decision making. Id., at 313.

The dynamic of our constitutional system is that individuals need not await
legislative action before asserting a fundamental right. The Nation's courts are
open to injured individuals who come to them to vindicate their own direct, personal
stake in our basic charter. An individual can invoke a right to constitutional
protection when he or she is harmed, even if the broader public disagrees and even
if the legislature refuses to act. The idea of the Constitution “was to withdraw
certain subjects from the vicissitudes of political controversy, to place them beyond
 18

the reach of majorities and officials and to establish them as legal principles to be
applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638
(1943). This is why “fundamental rights may not be submitted to vote; they depend
on the outcome of no elections.” Ibid.”

[Emphasis Supplied]

37. The Petitioners humbly submit that asking this Hon’ble Court to step aside is nothing short of
inviting the Hon’ble Court to abdicate its primary constitutional duty and thus the
“argument…that change in society, if any, can be reflected by amending laws by the elected
representatives of the people” is an “argument [that] must be emphatically rejected.” Navtej
Singh Johar (supra) [Para 352, Page 967-968 Vol. I of Case Law Compilation]; Additionally,
as noticed by this Hon’ble Court in Lata Singh v. State of U.P (2006) 5 SCC 475 [Para 16 at
Page 704 Vol. I of Case Law Compilation]:

“16. When the nation passes through a crucial transitional period in our history
this Hon’ble Court cannot remain silent in matters of great public concern, such as
the present one”.

V. TO SAY THAT‘HETEROSEXUAL MARRIAGES ARE THE NORM AND ARE FOUNDATIONAL TO

EXISTENCE OF THE STATE’, RINGS A SIMILARITY TO THE THEORETICAL UNDERPINNINGS OF
MISCEGENATION STATUTES.

38. The Union of India in its Counter Affidavit before this Hon’ble Court has adopted arguments
that are based on the traditional conceptions of Natural Law. It is the say of the Union that the
institution of marriage in India is based on religion, age-old custom, societal values [Para 11-
12 of the Counter Affidavit] and that, as a consequence, heterosexual marriages are
‘foundational to both the existence and continuance of the State’ [Para 33 of the Counter
Affidavit].

MISCEGENATION STATUTES

39. The underpinnings of this argument are that society or religion intended for the institution of
marriage to be of a particular kind and form and that any deviation from the same would be to
go against that common will. These arguments based on traditional notions of marriage are not
ones which are either unique or new before the Courts of law. In fact, these very same notions
of marriage as a closed and restrictive institution were cited before the Courts in the United
 19

States of America in relation to miscegenation statutes i.e. statutes that criminalised inter-racial
marriages.

40. In State v. Gibson 36 Ind. 389 (1871) [S.No. 9, Page 249-265 of Additional Compilation],
the Appellant, a person of colour, was charged with having ‘unlawfully married’ a white
woman in contravention of Section 47 of the Act defining felonies6. The Appellant contended
that the laws of state prohibiting inter-racial marriages are abrogated by the ratification of the
14th Amendment to the United States Constitution and with the passage of the Civil Rights Bill.
Faced with these arguments, the Supreme Court of Indiana referred to a Natural Law-esque
theory of marriage to uphold the conviction of the Appellant. The Court inter alia stated that
marriage was a ‘public institution established by God himself’ upon which society and
domestic relations are based and that the States were empowered to control, guard and preserve
this ‘god-given, civilizing and Christianizing institution’ [Page 262 of Additional
Compilation]. The Court thereafter went on to cite the decision of the Supreme Court of
Pennsylvania in The Philadelphia and West Chester R.R. Co. v. Miles, 2 Am. Philadelphia
Law Rev. 358 with approval, in the following terms [Page 264-265 of Additional
Compilation]:

“This subject is discussed with great ability, clearness, and force, by the Supreme
Court of Pennsylvania, in the recent case of The Philadelphia and West Chester
R.R. Co. v. Miles, 2 Am. Philadelphia Law Rev. 358, wherein it said:

“The right to separate, being clear in proper cases, and it being the subject of
sound regulation, the question remaining to be considered is whether there is
such a difference between the white and black races within this State, resulting
from nature, law, and custom, as makes it a reasonable ground of separation.
The question is one of difference, not of superiority or inferiority. Why the
Creator made one black and the other white, we do not know, but the fact is
apparent, and the races are distinct, each producing its own kind, and following
the peculiar law of its constitution. Conceding equality, with natures as perfect,
and rights as sacred, yet God has made them dissimilar, with those natural

6
Section 47. No person having one-eighth part or more of negro blood shall be permitted to marry any
white woman of this State, nor shall any white man be permitted to marry any negro woman, or any
woman having one-eighth part or more of negro blood, and every person who shall knowingly marry
in violation of the provisions of this section, shall, upon conviction thereof, be imprisoned in the State’s
prison not less than one, nor more than ten years, and be fined not less than one thousand nor more than
five thousand dollars
 20

instincts and feelings which He always imparts to His creatures, when He

intends that they shall not overstep the natural boundaries He has assigned to
them. The natural which forbids their intermarriage and that social law
amalgamation which leads to a corruption of races, is as clearly divine as that
which imparted to them different natures. The tendency of intimate social
intermixture is to amalgamation, contrary to the law of races. The separation of
the white and black races upon the surface of the globe is a fact equally apparent.
Why this is so, it is not necessary to speculate; but the fact of a distribution of
men by race and color is as visible in the providential arrangement of the earth
as that of heat and cold. The natural separation of the races is therefore an
undeniable fact, and all social organizations which lead to their amalgamation
are repugnant to the law of nature. From social amalgamation it is but a step to
illicit intercourse, and but another to intermarriage. But to assert separateness
is not to declare inferiority in either; it is not to declare one a slave and the other
a freeman; that would be to draw the illogical sequence of inferiority from
difference only. It is simply to say, that, following the order of Divine
Providence, human authority ought not to compel these widely separate races to
intermix. The right of such to be free from social contact is as clear as to be free
from intermarriage. The former may be less repulsive as a condition, but no less
entitled to protection as a right. When, therefore, we declare a right to maintain
separate relations, as far as reasonably practicable, but in a spirit of kindness
and charity, and with due regard to equality of rights, it is not prejudice, nor
caste, nor injustice of any kind, but simply to suffer men to follow the law of
races established by the Creator himself, and not to compel them to intermix
contrary to their instincts.”

We fully concur in, and indorse the doctrine above enunciated. It is quite clear to
us, that neither the fourteenth amendment nor the civil rights bill has impaired or
abrogated the laws of this State on the subject of marriage of whites and negroes.
The court erred in quashing the indictment”

[Emphasis Supplied]

41. Further, in Naim v. Naim 197 Va. 80 (1955) [S.No. 10, Page 266-276 of Additional
Compilation] the Appellant, a Chinese woman, was charged under the Code of Virginia for
 21

having ‘unlawfully married’ white man. The Appellant had challenged the said indictment
before the Supreme Court of Virginia. The Court referred to the decision in Gibson (supra)
with approval inasmuch as the divine prohibition of inter-racial marriages [Page 269-270 of
Additional Compilation]. Thereafter, while referring to the nature of the institution of
marriage, the Court categorically stated as follows:

“The institution of marriage has from time immemorial been considered a proper
subject for State regulation in the interest of the public health, morals and welfare,
to the end that family life, a relation basic and vital to the permanence of the State,
may be maintained in accordance with established tradition and culture and in
furtherance of the physical, moral and spiritual well-being of its citizens.”

[Emphasis Supplied]

42. It is therefore clear, from a reading of the above-mentioned reasoning that the
ban/criminalization of inter-racial marriages were defended before the Courts of law on the
basis of the long-standing and traditional institution of marriage and based on a divine interdict.
It is only in Loving v. Virginia 388 U.S 1 (1967) that there was a ‘break from the past’ in
relation to the ban on inter-racial marriages. In fact, the very same defence was taken even
before the United States Supreme Court in Loving (supra) where the trial judge had convicted
the Appellant citing the following reasons [Page 1762 Vol. IV of Case Law Compilation]:

“Almighty God created the races white, black, yellow, malay and red, and he placed
them on separate continents. And but for the interference with his arrangement
there would be no cause for such marriages. The fact that he separated the races
shows that he did not intend for the races to mix.”

However, the Court emphatically rejected this reasoning and the defences taken by holding that
the miscegenation statutes rest solely on a distinction based on race and that such classification
did not amount to ‘accomplishment of some permissible state objective’. It further concluded
that the denial of freedom of marriage, which is fundamental to a person’s existence, would
amount to a violation of the equality principle. [Page 1770-1771, Vol. IV of Case Law
Compilation]
 22

INTER-CASTE/INTER-RELIGIOUS MARRIAGES IN INDIA

43. It would be apposite, for the purposes of this argument, to make reference to the cases which
presented a similar predicament to the Indian Courts. Close on the lines of miscegenation
statutes, the societal and religious norms in India were presented before the Courts in India to
violently oppose inter-caste and inter-religious marriages. In these cases referred to hereunder,
this Hon’ble Court had to repeatedly emphasise that the institution of marriage had moved
beyond the traditional conceptions and that it would no longer be a valid defence to cite these
conceptions to curtail the liberty of an individual.

44. In Lata Singh (supra), this Hon’ble Court noted that several ‘young men and women who
marry outside their caste’ had faced severe threats of violence and harassment [Para 16 at Page
704, Vol. I of Case Law Compilation]. Thereafter, this Hon’ble Court concluded that inter-caste
marriages are in national interest and further admonished the practice of “honour” killings
[Para 17 at Page 705, Vol. I of Case Law Compilation]. Further, in Shafin Jahan v. Asokan
K.M (2018) 16 SCC 368, this Hon’ble Court had noted the plea of the father of a woman [who
had converted to Islam to marry a man of her choice] who sought to annul her marriage with a
person of another religion, before rejecting it and affirming the woman’s right to marry a person
of her choice. [Para 84 at Page 1131, Vol. I of Case Law Compilation; Opinion of Justice
D.Y. Chandrachud, as the Chief Justice then was]

45. In Laxmibai Chandaragi v. State of Karnataka (2021) 3 SCC 360, this Hon’ble Court noted
the ‘departure from earlier norms of society where caste and community play a major role’ in
the present times and gave its seal of approval to inter-caste marriages which are consensual.
[Para 10 at Page 709, Vol. I of Case Law Compilation]. Further, this Hon’ble Court also
referred to Dr. Ambedkar’s words in his work Annihilation of Caste wherein inter-caste
marriage was proposed as the solution to rid the society of the ‘separatist feeling’ created by
the caste-system [Para 15 at Page 710, Vol. I of Case Law Compilation].

46. It is humbly submitted that the golden thread that runs through the decisions of the Courts in
the United States of America relating to miscegenation statutes and the decisions of this
Hon’ble Court in relation to inter-caste/inter-religious marriages is this: The citing of
traditional or religious notions of society and linking it to the ‘purity or stability’ of the
institution of marriage would not preclude the Courts from upholding the spirit of equality
embedded in the Constitution and the individual autonomy which is revered by the
Constitution.
 23

47. On parity of reasoning, it is humbly submitted that the arguments of the Union of India that
heterosexual marriages lie at the core of society or religion and that therefore LGBTQIA+
marriages would strike at the said core, ought to be emphatically rejected by this Hon’ble Court.
The arguments to ‘preserve the institution of marriage’ based on traditional/religious notions
are not new to the Courts either in this Country or in the global west. The “preservation of an
institution” which is based on the traditional, deeply discriminatory notions of society would
fly in the face of the equality jurisprudence that is now well-established under the Constitution.
Therefore, it is humbly submitted that any argument that denies two consenting adults the right
to come within the fold of the institution of marriage based on the traditional notions of the
said institution would be violative of the Fundamental Rights of the said individuals and would
severely hamper their ‘orderly pursuit of happiness’7.

VI. UNION OF INDIA’S ‘SEPARATE BUT EQUAL’ ARGUMENT

48. The Union of India in its Counter-Affidavit before this Hon’ble Court has referred to the
decision in Navtej Singh Johar (supra) as merely decriminalising consensual sexual
intercourse between persons of the same sex and nothing more [Para 37 of the Counter
Affidavit]. Further, the Union has referred to same sex relationship as ‘unions’ which may ‘not
be unlawful’ but that not all these ‘unions’ can be given the recognition under the institution
of marriage [Para 34 r/w Para 36 of the Counter Affidavit]. This apart, it is also stated that
the law is neutral and in line with the principle of equality inasmuch as it “equally” prevents
other “heterosexual unions” [such as live-in relationships] from being brought into the fold of
marriage [Para 36 of the Counter Affidavit].

49. In effect, the submission of the Union of India is that while LGBTQIA+ relationships are
“possibly” lawful unions, the social mores and the avowed object of maintaining stability in
the social unit overrides the rights of the members involved in such relationships. It is the case
of the Union, that while the rights of the individuals in the same-sex relationships to sustain
and be part of such relationships is not done away with by the State, it reserves to itself the
right to include a class of citizens from entering the fold of marriage, which is therefore in line
with the principle of equality.

50. It is humbly submitted that this argument of the Union bases itself on the idea that same-sex
couples are treated and are on par with every other citizen of this country, as long as said

7
Loving (supra) at Page 1771, Vol. IV of Case Law Compilation
 24

couples remain out of the fold of marriage and that their entry into the said institution can be
restricted by it without transgressing the fundamental rights of said couples. It is humbly
submitted that these reasons given by the Union of India are suggestive of the ‘separate but
equal’ doctrine which was adopted by various State Governments in the United States of
America and which initially found favour with the United States Supreme Court in Plessy v.
Ferguson 163 U.S. 537 (1895) [S.No. 11, Page 277-304 of Additional Compilation].

51. In Plessy (supra) the United States Supreme Court was called upon to decide upon whether
the segregation of passengers on the basis of their race on trains would amount to a violation
of the principle of equality. The arguments placed before the Court and the majority opinion
penned by Justice Brown provide a stark similarity to the arguments taken by the Union of
India in the present case. The Majority cited the following reasons, in defence of such
segregation of passengers:

i.A statute which founds itself on the distinction of humans based on the colour of
two races has no tendency to destroy the legal equality of the two races. [Page 283
of Additional Compilation]

ii.Laws permitting, and even requiring, separation of two races where they are liable
to be brought into contact do not necessarily imply the inferiority of either race to
the other [Page 284 of Additional Compilation]

iii.If the civil and political rights of both races are equal, one cannot be inferior to other
civilly or politically. If one race is inferior to the other socially, the Constitution
cannot put them on the same plane [Page 291 of Additional Compilation]

52. On a bare perusal of the above, the Majority acceded to the arguments based on facial neutrality
of the segregation and held that so long as persons of two different races are allowed to travel
‘equally’ on the same train, the ‘separation’ on the same train would not violate the principle
of equality. To compare this to the Union’s argument that same-sex relationships might be
lawful and whose private concomitants would not be intruded upon by the State, similar to
heterosexual relationships, it is only when it comes to the institution of marriage that the entry
restrictions would apply. The argument, in effect, is that while same-sex relationships are
‘equal’ to heterosexual relationships inasmuch as they are unions of persons which is not
prohibited, they are ‘separate’ inasmuch as they would not be allowed to be married under the
aegis of the State machinery. The ‘separate but equal’ doctrine is therefore wholly comparable
to the Union’s arguments herein.
 25

53. The opposition to these considerations came vehemently from Justice Harlan who was
dissenting in Plessy (supra). Justice Harlan held that this facial neutrality would not save
such practice from the full force of the equality jurisprudence. It was his opinion that under the
‘guise of equal accommodation’, the people of colour were compelled to travel separately
[Page 297 r/w Page 302 of Additional Compilation]. He further noted that the destinies of
the races were ‘indissolubly linked together’ and the state endorsement of this segregation
would be to ‘permit the seeds of race hate to be planted under the sanction of law’ [Page 300
of Additional Compilation].

54. This apart, in Brown v. Board of Education 347 U.S. 483 (1953) the United States Supreme
Court came down on the ‘separate but equal’ doctrine but only limited to a situation of public
education because it formed the ‘very foundation of good citizenship’ [S.No. 12, Page 305-
318 @ Page 315-316 of Additional Compilation].

55. It is also submitted by the Respondents that the institution of marriage is a ‘social concept’ and
that the sanctity to such an institution can only be on the basis of ‘social acceptance’ [Page 4
Para 12 of Application dated 17.04.2023]. It is humbly submitted that this is again an
argument which, interestingly, was taken and accepted by the United States Supreme Court in
Plessy (supra). The Majority therein had taken the view that social prejudices and social
equality can only be attained by ‘voluntary consent of individuals’ and that legislations or the
Constitution cannot create such an equality [Page 551]. This is yet another striking similarity
to the ground taken by the Union of India that same-sex marriages cannot be allowed to exist
without ‘social acceptance’ which is then carried over by the legislature. It is humbly submitted
that this argument must be emphatically rejected by this Hon’ble Court inasmuch as it is an
egregious violation of the equality jurisprudence under the Constitution of India. In fact, as
Justice Harlan suggested, this argument is ‘scarcely worthy of consideration’ and the
Petitioners herein, despite allegations of ‘urban and elitist views’ being held by them, would
object to such an argument and ‘ought never to cease objecting’ to the same.

56. It is humbly submitted that, as has already been noted above, the Respondent’s arguments in
the present case are reflective of the ‘separate but equal’ doctrine which has since been
admonished and whittled down in the country of its origin. This ‘separate but equal ‘treatment
is further evidenced by the rights that are granted to the transgender persons either through
legislations or through Courts of law:
 26

i.Prohibition of discrimination in education, employment [Section 3(a) – (c) of the

Transgender Persons (Protection of Rights) Act, 2019]

ii.Removal of discrimination in standing for public office or access to enjoyment of

services, goods etc. [Section 3(e) and Section 3(h)]

iii.Government to formulate welfare measure and promote rights of transgender

persons [Section 8]

iv.Non-discrimination in employment, recruitment, promotion and other related issues

[Section 9]

v.Right to reside in a household and the right to not be excluded from households
[Section 12]

vi.Inclusive education and vocational training [Section 13 and 14]

vii.Government to provide for healthcare facilities [Section 15]

viii.Equal right to achieve full potential as human beings [NALSA (supra) at Para
116.3, Page 775-776, Vol. I of Case Law Compilation]

ix.Civil rights of the community including right to vote, right to marry, right to claim
formal identity [NALSA (supra) at Para 119, Page 777, Vol. I of Case Law
Compilation]

57. It is humbly submitted that the Union of India and this Hon’ble Court has recognised the rights
of transgender persons which are all-encompassing and are rooted to the human rights and civil
rights that occur to the benefit of all persons. In this scenario, when transgender persons have
been accorded with all the benefits that flow from the statute and the judgment of this Hon’ble
Court, for the Union to contend that the union of such transgender persons would be lawful but
cannot be treated on par with marriages is a formulation of the ‘separate but equal’ doctrine
which must be rejected by this Hon’ble Court. This approach of the Union of India would
amount to giving an imprimatur and legal sanction to the seeds of hate being planted against
same-sex couples and would cause grave prejudice to the community as a whole.

VII. OPPOSITION TO SAME-SEX MARRIAGES AS POLITICS OF ‘DISGUST’

58. Martha C. Nussbaum in her work From Disgust to Humanity – Sexual Orientation &
Constitutional Law refers to and attempts to counter the various justifications provided for the
 27

failure to recognise same-sex marriages. These justifications that are countered vary from those
relating to immorality of same-sex marriages, procreation as the goal for marriage and
protection of the interests of children. Importantly, she refers to the objection to same-sex
marriages which are based on the thought that the very recognition of these marriages would
‘demean traditional marriages’ and ‘make it less valuable’ [Page 1009, Vol. II, Documents
Compilation] and states that these arguments are based on the idea of ‘disgust and
contamination’ [Page 1011, Vol. II, Documents Compilation]. The following passage is
apposite to that end:

“The idea that same-sex unions will sully traditional marriage therefore cannot be
understood without moving to the terrain of disgust and contamination. The only
distinction between unworthy heterosexuals and the class of gays and lesbians that
can possibly explain the difference in people’s reaction is that the sex acts of the
former do not disgust the majority, whereas the sex acts of the latter do. The thought
must be that to associate traditional marriage with the sex acts of same-sex couples
is to defile or contaminate it, in much the way that eating food served by a dalit
used to be taken by many people in India to contaminate the high-caste body.
Nothing short of a primitive idea of stigma and taint can explain the widespread
feeling that same-sex marriage defiles or contaminates straight marriage, while the
marriages of immoral and sinful heterosexuals do not do so.

Those who insist so strongly on procreation do not feel sullied or demeaned or

tainted by the presence next door of two opposite-sex seventy-year-olds newly
married, nor by the presence of opposite-sex couples who publicly announce their
intention never to have children. They do not try to get lawmakers to make such
marriages illegal, and they neither say nor feel that such marriages are immoral or
undermine their own. So the feeling of undermining or demeaning cannot honestly
be explained by the point about children, and must be explained instead by other
darker ideas.

Like same-sex marriages, cross-racial unions were opposed with a variety of

arguments, both political and theological. In hindsight, however, we can see that
disgust was at work…We should draw the same conclusion about the prohibition
of same-sex marriage: irrational ideas of stigma and contamination, the sort of
“animus” the Court recognized in Romer, is a powerful force in its support. So
 28

thought the Supreme Court of Connecticut in October 2008 [sic in Kerrigan v.

Commissioner of Public Health 289 Conn. 135], saying:

“Beyond moral disapprobation, gay persons also face virulent homophobia that
rests on nothing more than feelings of revulsion toward gay persons and the
intimate sexual conduct with which they are associated. . . .Such visceral
prejudice is reflected in the large number of hate crimes that are perpetrated
against gay persons. . . .The irrational nature of the prejudice directed at gay
persons, who “are ridiculed, ostracized, despised, demonized and condemned”
merely for being who they are . . . is entirely different in kind than the prejudice
suffered by other groups that previously have been denied suspect or quasi-
suspect class status. . . . This fact provides further reason to doubt that such
prejudice soon can be eliminated and underscores the reality that gay persons
face unique challenges to their political and social integration”

[Emphasis Supplied]

59. The idea that the same-sex marriages and the recognition being accorded to such marriages
would somehow discredit and value attached to the institution of marriage is based on thoughts
that can only be described as one that is based on invidious exclusion. The very fact that two
persons, who are not compliant with the heteronormative ideas of society, getting married
somehow sullies the idea of marriage and threatens the stability of the institution is an argument
that is purely rooted in the disgust and stigma directed towards those persons.

60. To put in context, the Union of India in its Counter Affidavit filed before this Hon’ble Court
has contended that the institution of marriage has a ‘sanctity attached to it’ [Para 11 of Counter
Affidavit] and that heterosexual marriages are foundational to the existence and continuance
of the State [Para 33 of Counter Affidavit]. This apart, they have also contended that the
decision in Navtej Singh Johar (supra) only covers the private domain of individuals and that
it could not be a recognition of same sex-marriage and ‘legitimizing a particular human
conduct’ [Para 39 of Counter Affidavit]. It is also stated that marriage involves several
reciprocal duties and joint responsibilities such as raising a child and ensuring ‘proper mental
and psychological growth in the most natural way possible’ [Para 17 of Counter Affidavit].
Further, in their Application on Maintainability dated 17.04.2023, the Union has taken the stand
that giving parity to same-sex marriages would amount to conferring the same sanctity and
 29

legal status to such marriages which are not part of the ‘sociohistorical reality’ [Page 14 Para
30].

61. It is humbly submitted that the use of the words ‘natural way’ and ‘legitimizing of conduct’ are
specifically terminology which are used in the context of practices and behaviour which is not
considered to be adhering to the heteronormative culture. In effect, the thought that same-sex
couples might not be able to rear children in the ‘most natural way’ or that the conduct between
two consenting same sex-couples cannot be ‘legitimized’ are all intricately linked to the idea
of disgust and contamination that Martha C. Nussbaum refers to in her piece. The
heteronormative idea of marriage is thought to be sullied and delegitimized merely by the fact
that LGBTQIA+ couples seek for their relationships to be recognized under the fold of
marriage.

VIII. RE: THE TRANSGENDERS PERSONS (PROTECTION OF RIGHTS) ACT, 2019 [TG ACT]

62. The TG Act is a welfarist legislation enacted after the judgement of this Hon’ble Court in
NALSA and is meant for the “protection of rights of transgender persons and their welfare and
for matters connected therewith and incidental thereto” [Long Title]. The Act was necessitated
on account of persistent denial of rights and constant discrimination and social stigma being
suffered by members of the trans-community.

63. Section 2(k) of the Act defines a “transgender person” as:

“transgender person” means a person whose gender does not match with the
gender assigned to that person at birth and includes trans-man or trans-woman
(whether or not such person has undergone Sex Reassignment Surgery or hormone
therapy or laser therapy or such other therapy), person with intersex variations,
genderqueer and person having such socio-cultural identities as kinner, hijra,
aravani and jogta”.

64. It is respectfully submitted that members of the trans community are subjected to multiple,
intersecting oppressions. One aspect relates to the denial of gender identity and being relegated
to the margins of society, which concern was foundational to the declaration of rights in
NALSA. It is submitted that the TG Act seeks to enshrine both recognition of self-identified
gender identity and the principle of non-discrimination in public life.

65. The provisions of the Act are therefore not exhaustive in nature. Section 20 of the TG Act states
that the Act is not in derogation, but in addition to any other law in force. There is nothing in
the TG Act to suggest that transgender individuals are barred from the institution of marriage.
 30

Indeed, such an argument must be rejected as this Hon’ble Court as well as High Courts have
already adjudicated and made positive declarations as regards the rights of transgender persons
to marry and live full, social lives with personal autonomy and dignity. Any legislation enacted
to defeat the judgment of this Hon’ble Court would be unlawful, besides being ultra vires.

66. As is shown from an examination of the provisions of the Act, the Act in fact aspires to facilitate
full socio-economic participation of Transgender persons in Indian society. Importantly, the
Act seeks to recognize gender of an individual based of their self-defined gender identity, and
makes provisions to eliminate discrimination in certain spheres of existence, such as
employment and access to public spaces.

67. It cannot be argued by the Respondents, that is, the state, that the rights enshrined in the TG
Act are the extent of the rights available under Indian law to transgender persons, as this would
tantamount to contempt of the expansive formulation of rights declared by this Hon’ble Court
in NALSA and enshrined in Indian Constitutional jurisprudence as well as International Law.

68. Indeed, the States argument that the TG Act confines and captures the extent of rights available
to the transgender community is further challenged by the provisions of other laws, which bring
intersex variation and other sexual characteristics within its protective ambit. For example, in
the Adoption Regulations 2022, propounded under the Juvenile Justice Act, 2015, variations
to genitals are classified under Special Needs, presumably to prevent such children from being
rejected by prospective adoptive parents on the basis of prejudice. It would be a logical fallacy
to argue that though children with variations of sexual characteristics are entitled to the love
and care of a family, the same child as an adult be barred from adopting, fostering or birthing
a child within the framework of a stable marital union and giving it necessary care and
protection.

69. Similarly, a number of State Governments have enacted policies for the protection of
transgender persons and at least two state governments, that is, Kerala and Assam, in fact
provide marriage assistance to transgender persons. In view of this, the stand of the Respondent
Union may be untenable and outdated.

70. It is respectfully submitted that the institution of marriage cannot be the prerogative of
“biological men” and “biological women” alone, in view of Section 4 of the TG Act, read with
Section 7 of the TG Act. Further, it is now a well-established concept that gender is
distinguishable from sex, and gender can be expressed or performed in a myriad of ways. When
the legislation itself provides for a self-perceived gender identity, the State may be estopped
 31

from relying on an outmoded formulation of gender based on the presence of certain secondary
sexual characteristics.

71. It is submitted that Section 2(c) of the Transgender Persons (Protection of Rights) Act, 2019
(“Act”), defines ‘family’ as “a group of people related by blood or marriage or by adoption
made in accordance with law.” Traditionally, members of the trans community have found
love and acceptance from “found” families or families of choice, having been ostracized or
disowned by their own families. A perusal of the definition as it stands demonstrates the
intention of the legislature to also incorporate and accommodate trans-persons into the
traditional familial set up, besides acknowledging their families of choice.

72. By incorporating Section 2(c) of the TG Act, the legislature has acted in consonance with the
view that marriage is permissible for members of the trans community and has acknowledged
transpersons right to found a family through marriage. In fact, the institution of marriage and
the legal regime of adoption, under the Special Marriage Act, at present accommodate transmen
and transwomen, albeit only in unions with the opposite gender. This is because while the
statutes use gendered terms, they do not specify “biology” as an additional criterion.

73. Transgender persons, including persons with intersex variations and others who may choose to
identify as third gender are entitled to equal protection of laws [NALSA, Para 81]. Indian laws,
as indeed laws around the world are mired in the gender binary, providing protection to women,
children or men as the case may be. A contemporary reading and application of these laws
would have to be accommodative of traditionally excluded sections of society. This Hon’ble
Court may be please to hold as a necessary corollary of its ruling in NALSA, that wherever a
gendered term may occur in these laws, the same may be read as accommodating the self-
identified gender identity of an individual.

74. It is imperative to acknowledge the category of transgender individuals, who prefer to remain
outside or at different points in the gender binary, and to whom the protective cover of certain
laws remain to be extended. Without assuring the right to marry and to found a family, two
aspects of full citizenship are denied to transgender persons. One is the ability to enter into a
legally recognized union and obtain a status that then opens access to a bundle of rights, and
second, protection of laws in case of abuse, victimization and marital breakdown.

75. The State has, through the TG Act, made an attempt to recognize a plethora of pre-existing
rights, that have been sought to be reinforced by way of insertion of Section 3, so as to enable
transgender persons to lead a dignified life, with the ability to take pride in being ‘who they
 32

are’. However, the fact that the provision is prefaced with the words “(n)o person or
establishment shall discriminate against a transgender person on any of the following
grounds”, cannot be given full effect to, until such time transgenders persons’ fundamental
right to marry is acknowledged. Union’s refusal to acknowledge their right to marry is
unconstitutional and contrary to the mandate of Section 3 of the TG Act. Section 4 of the Act
recognizes the right to ‘self-perceived gender identity’.

76. On one hand, the State has approached the obligation of safeguarding the rights of transgender
persons and attempts to assimilate ‘them’ into the mainstream, by placing obligations upon
itself; but on the other hand, it seeks to keep them at a distance, as if to say that such persons
should be satisfied with the limited rights and individual recognition that they have received
from the State.

77. A few examples of impediments that stand created in their lives on account of not having
recognized partners are as follows:

• Joint Healthcare Plans and Insurance Policies offered by workplaces.

• Option of choosing their partner for spousal benefits offered by the employer.

• Privacy and Immunity from disclosure of any communication between spouses under
Section 122 of the Evidence Act, 1872.

• Right to seek Compensation under various laws.

• Right to an accommodation under Section 3(g) of the TG Act, cannot be met without
guaranteeing the right to married gender non-conforming couples.

• Compassionate Appointments on account of any death of kith or kin.

• Right to adopt a child as a married couple

CHILDREN OF TRANSGENDER PERSONS MAY FACE THE POSSIBILITY OF BEING OSTRACIZED

AND OTHERED BY SOCIETY.

78. No individual can be barred from having a child and retaining custody of that child. As on date,
while the Juvenile Justice Act, 2015 distinguishes between a single person and a married
couple, it does not prevent a transgender person from adopting a child [Section 57 on
eligibility]. Therefore, without a doubt, children of transgender persons ought to enjoy all the
rights, privileges and responsibilities as children born to cisgendered, heterosexual couples.
 33

Failure to legally recognize unions of transgender person(s) also leaves their children (and other
family members) vulnerable to additional stigma.

THE STATE CANNOT RENEGE ON THEIR OBLIGATION TO ASSIMILATE TRANS-PERSONS INTO

MAINSTREAM SOCIETY BY BEING SELECTIVE IN SUCH INCLUSION.

79. In furtherance of the Statement of Objects and Reasons of the Act, Section 8 is a positive
obligation imposed on the State to take steps so as to “secure full and effective participation of
transgender persons and their inclusion in society”. The Act being a legislation aiming to
protect and safeguard the rights of transgender persons, could not have intended to achieve
only a ‘selective inclusion’ of such persons, as the same would be inherently discriminatory.

80. The Act is an attempt by the Union to impose obligations upon itself to take steps to ensure
integration of transgender persons in society, free of discrimination and stigmatization.
However, without recognizing the right to marry of trans-persons, regardless of their or their
partner’s gender identity or sexual orientation, it would not be possible to ensure that such
persons are enabled to enjoy the full spectrum of rights guaranteed to trans-persons by the
statute and judicial pronouncements. As stated earlier, the denial of the right to marriage to
transgender persons is contrary to the scheme of the Act, and therefore, the Union by arguing
against the right to marriage is going against its own statute.

INDIAN COURTS ON THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

81. This Hon’ble Court in NALSA (supra)8 has, while holding that the recognition of one’s gender
identity is integral to the fundamental right to dignity and that such gender identification acts
as the gateway to the meaningful exercise of several rights in the community has inter alia
recognized the right of transgender persons to marry. This Court held [Para 81 r/w Para 119
at Page 765 r/w 777, Vol. I of Case Law Compilation]:

“81. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude
hijras/transgenders from their ambit, but the Indian law on the whole recognise the
paradigm of binary genders of male and female, based on one's biological sex. As
already indicated, we cannot accept the Corbett Principle of “biological test”,
rather we prefer to follow the psyche of the person in determining sex and gender

8
See also Paras 13, 14 [Page 735-736], 21, 22 [Page 738] 53 [Page 757], 61, 62 [Page 760], 66, 69,
72, 74, 75 [Page 762-764], 82, 83 [Page 765-766], 119, 120, 121 [Page 777], 125, 129 [Page 778-
779];
 34

and prefer the “psychological test” instead of “biological test”. Binary notion of
gender reflects in the Penal Code, 1860 for example, Section 8, 10, etc. and also in
the laws related to marriage, adoption, divorce, inheritance, succession and other
welfare legislations like Nrega, 2005, etc. Non-recognition of the identity of
hijras/transgenders in the various legislations denies them equal protection of law
and they face widespread discrimination.

119. Therefore, gender identification becomes very essential component which is

required for enjoying civil rights by this community. It is only with this recognition
that many rights attached to the sexual recognition as “third gender” would be
available to this community more meaningfully viz. the right to vote, the right to
own property, the right to marry, the right to claim a formal identity through a
passport and a ration card, a driver's licence, the right to education, employment,
health and so on.”

82. The Hon’ble Patna High Court in Veera Yadav vs. The Chief Secretary, Government of Bihar
and Ors., bearing C.W. No. 5627 of 2020, tried to define the nature of the duty cast upon the
State to assimilate the members of the transgender community into the mainstream of society
and, reduce, progressively, and eliminate discrimination against the transgender community. It
was held that the State is under a constitutional as well as statutory obligation to protect the
transgender community from the pervasive discrimination that the members of transgender
community are facing. As citizens of India, transgender persons have all rights under the golden
triangle of the Indian Constitution, i.e., Articles 14, 19 and 21, as recognized by this Hon'ble
Court in NALSA (supra), and a duty is cast upon the State by judgments, statute and
international instruments to give full effect to such rights. The Hon’ble Court further held that
beneficial treatment to persons of the transgender community extends beyond employment
opportunities and welfare measures, and it is the duty of the State to root out discrimination
within general public through awareness, sensitization programs, educational reforms and
training.

83. In Mansur Rehman v. The Superintendent of Police, Coimbatore and Anr., reported in 2018
SCC OnLine Mad 3250, the Hon’ble Madras High Court, in a case involving a man and a
transgender woman being harassed by society, relied upon Lata Singh, which held that the
instrumentalities of the State should encourage inter-caste and inter-religious marriage. The
 35

High Court observed that marriages involving transgender persons also deserve to be included
in the said list, and that such couples would also be entitled for police protection.

IX. CONSTITUTION IS A LIVING AND TRANSFORMATIVE DOCUMENT OF PROGRESSIVE RIGHTS

84. It is submitted that Constitution, like the law of the society, is a living organism. It is based on
a factual and social reality that is constantly changing. Sometimes a change in the law precedes
societal change and is even intended to stimulate it. Sometimes, a change in the law is the result
in the social reality. When we discuss about the rights of same gender persons to marry in the
constitutional context, we find that in order to bring about complete paradigm shift, the law has
to play more predominant role and hence, questions of law raised in the petition must be
interpreted progressively with changing times and evolving societal norms. Law is not static
and immutable but ever increasingly dynamic and grows with the ongoing passage of time. It
is not that with changing times the meaning changes but changing times illustrate and
illuminate the meaning of the expressions used in the statutes. The connotation of the
expressions used takes its shape and colour in evolving dynamic situations. [As held in Video
Electronics (P) Ltd. v. State of Punjab, (1990) 3 SCC 87]. The Constitution would become a
stale and dead testament without dynamic, vibrant, and pragmatic interpretation.

85. This Hon’ble Court in its celebrated decision of Kesavananda Bharati v. State of Kerala
(1973) 4 SCC 225 [Para 634] speaking through J. M. Shelat and K.N. Grover, J has also
recognised that:

“Constitution is expected to endure for a long time. Therefore, it must necessarily

be elastic. It is not possible to place the society in a straitjacket. The society grows,
its requirements change. The Constitution and the laws may have to be changed to
suit those needs. No single generation can bind the course of the generation to
come.”

86. It is well-recognized by the Courts in India that the Constitution is an organic document that is
alive to the needs and developments of the society and horizons of constitutional law are ever
expanding. The consequence, therefore, is that the rights guaranteed under the Constitution
cannot be given a static interpretation without considering the evolving nature of society. This
aspect has been felicitously laid down by this court in plenty of judgments in the following
manner:
 36

87. In Navtej Singh Johar (supra) emphasizing on the role of courts in adopting a dynamic and
purposive interpretative approach of the Constitution, this Hon’ble Court has held as follows
[Page 879, 881-883, Vol. I of Case Law Compilation]:

“93. A democratic Constitution like ours is an organic and breathing document with
senses which are very much alive to its surroundings, for it has been created in such
a manner that it can adapt to the needs and developments taking place in the
society. It was highlighted by this Court in Chief Justice of A.P. v. L.V.A.
Dixitulu [Chief Justice of A.P. v. L.V.A. Dixitulu, (1979) 2 SCC 34 : 1979 SCC
(L&S) 99] that the Constitution is a living, integrated organism having a soul and
consciousness of its own and its pulse beats, emanating from the spinal cord of its
basic framework, can be felt all over its body, even in the extremities of its limbs.

95. Thus, we are required to keep in view the dynamic concepts inherent in the
Constitution that have the potential to enable and urge the constitutional courts to
beam with expansionism that really grows to adapt to the ever-changing
circumstances without losing the identity of the Constitution. The idea of identity of
the individual and the constitutional legitimacy behind the same is of immense
significance. Therefore, in this context, the duty of the constitutional courts gets
accentuated. We emphasise on the role of the constitutional courts in realising the
evolving nature of this living instrument. Through its dynamic and purposive
interpretative approach, the judiciary must strive to breathe life into the
Constitution and not render the document a collection of mere dead letters….

100. The Court, as the final arbiter of the Constitution, has to keep in view the
necessities of the needy and the weaker sections. The role of the Court assumes
further importance when the class or community whose rights are in question are
those who have been the object of humiliation, discrimination, separation and
violence by not only the State and the society at large but also at the hands of their
very own family members. The development of law cannot be a mute spectator to
the struggle for the realisation and attainment of the rights of such members of the
society.

102. The “living document” concept finds place in several international authorities
as well. The courts in other jurisdictions have endorsed the view that the
 37

Constitution is forever evolving in nature and that a progressive approach is

mandated by the principles inherent in the Constitution itself.

106. Thus, it is demonstrable that expansive growth of constitutional idealism is

embedded in the theory of progress, abandonment of status quoist attitude,
expansion of the concept of inclusiveness and constant remembrance of the
principle of fitting into the norm of change with a constitutional philosophy.”

[Emphasis Supplied]

88. The character of being a living and organic document lies in the transformative ability of the
Constitution. The Constitution since its inception has been used as a tool to shape the lives of
citizens in Indian society. Its exposition and energetic appreciation by constitutional courts
constitute the lifeblood of progressive societies. The Constitution would become a stale and
dead testament without dynamic, vibrant and pragmatic interpretation. Constitutional
provisions have to be construed and developed in such a manner that their real intent and
existence percolates to all segments of the society. Discussing its transforming nature this
Hon’ble Court in State of Kerala v. N.M. Thomas [State of Kerala v. N.M. Thomas, (1976) 2
SCC 310] has observed that the Indian Constitution is a great social document, almost
revolutionary in its aim of transforming a medieval, hierarchical society into a modern,
egalitarian democracy and its provisions can be comprehended only by a spacious, social-
science approach, not by pedantic, traditional legalism. Also, in Navtej (Supra) Hon’ble court
has held [Para 107, Page 883 of Vol. I of Case Law Compilation]:

“…The whole idea of having a Constitution is to guide the nation towards a

resplendent future. Therefore, the purpose of having a Constitution is to transform
the society for the better and this objective is the fundamental pillar of
transformative constitutionalism.”

89. In an ever-evolving society, laws constantly evolve to keep up with the changes in the society.
‘It would be tragic if the law were so petrified as to be unable to respond to the unending
challenge of evolutionary or revolutionary changes in society.’ [W. Friedmann, Law in a
Changing Society, p. 503 - As quoted in para 192 of Navtej (supra) at Page 904-905, Vol. I
of Case Law Compilation]. In a progressive country like ours the working of the Constitution
depends entirely upon the prevalent atmosphere and conditions which creates the constitutional
culture for this great document to adapt to the swift and rapid changes occurring in the society.
 38

Elucidating on the philosophy of “constitutional culture” in Govt. (NCT of Delhi) [Govt. (NCT
of Delhi) v. Union of India, (2018) 8 SCC 501, the Court, has observed:

“165. The constitutional courts, while interpreting the constitutional provisions,

have to take into account the constitutional culture, bearing in mind its flexible and
evolving nature, so that the provisions are given a meaning which reflect the object
and purpose of the Constitution.”

“167. … We look to the history of the time of framing and to the intervening history
of interpretation. But the ultimate question must be, what do the words of the text
mean in our time? For the genius of the Constitution rests not in any static meaning
it might have had in a world that is dead and gone, but in the adaptability of its
great principles to cope with current problems and current needs. What the
constitutional fundamentals meant to the wisdom of other times cannot be their
measure to the vision of our time. Similarly, what those fundamentals mean for us,
our descendants will learn, cannot be the measure to the vision of their time.”

[Emphasis Supplied]

90. In Navtej (Supra) it has been held that [Para 197, Page 906 Vol. I of Case Law Compilation]:

“it is necessary for the constitutional courts to inculcate in their judicial

interpretation and decision making a sense of engagement and a sense of
constitutional morality so that they, with the aid of judicial creativity, are able to
fulfil their foremost constitutional obligation, that is, to protect the rights bestowed
upon the citizens of our country by the Constitution. Also, The doctrine of
progressive realisation of rights, as a natural corollary, gives birth to the doctrine
of non-retrogression. As per this doctrine, there must not be any regression of
rights. In a progressive and an ever-improving society, there is no place for retreat.
The society has to march ahead. The doctrine of non-retrogression sets forth that
the State should not take measures or steps that deliberately lead to retrogression
on the enjoyment of rights either under the Constitution or otherwise.”

[Emphasis Supplied]

91. It is humbly submitted that being the sentinel on the qui vive, it is the constitutional duty of the
Court to review the provisions as to whether they are inconsistent with the Constitutional
culture and the doctrines propounded in its various precedents.
 39

X. ON RELIEFS
92. The Special Marriage Act, 1954 is an inclusionary legislation which permits recognition of
inter-faith unions. The Foreign Marriage Act, 1969 is a legislation to make provision relating
to marriages of citizens of India outside India. If this Hon’ble Court is pleased to hold that the
under-inclusiveness of the SMA and the FMA to recognize LGBTQIA+ marriages is
unconstitutional, it is respectfully submitted that the said under-inclusiveness can be remedied
by a process of judicial reading-in of necessary words and phrases into the SMA and the FMA.

93. Taking guidance from the judgment of the South African Constitutional Court in the case of
Fourie (supra), it is proposed that this process can be made ‘simple and direct’ by reading-in
the word “spouse” at the appropriate provisions in the SMA and FMA. The relevant paragraphs
from Fourie are as follows [Page 2096-2097, Vol. IV of Case Law Compilation]:
“[158] What justice and equity would require, then, is both that the law of
marriage be kept alive and that same-sex couples be enabled to enjoy the status and
benefits coupled with responsibilities that it gives to heterosexual couples. These
requirements are not irreconcilable. They could be met by reading into section
30(1) of the Marriage Act the words “or spouse” after the words “or husband”, as
the Equality Project proposes.

[159] Reading-in of the words “or spouse” has the advantage of being simple
and direct. It involves minimal textual alteration. The values of the Constitution
would be upheld. The existing institutional mechanisms for the celebration of
marriage would remain the same. Budgetary implications would be minimal. The
long-standing policy of the law to protect and enhance family life would be
sustained and extended. Negative stereotypes would be undermined...”

94. It would be seen that Section 30(1) of the South African Marriage Act is pari materia to Section
12 of the Indian Special Marriage Act, 1954 and Section 13 of the Indian Foreign Marriage
Act, 1969. Therefore, adopting the simple and direct method as was followed in Fourie would,
in our humble opinion, serve the purpose of remedying the non-recognition of LGBTQAI+
marriages.

95. It would be seen that the South African Constitutional Court in Fourie, noted that the South
African Parliament had “already undertaken a number of legislative initiatives which
 40

demonstrate its concern to end discrimination on the ground of sexual orientation”. In view of
these legislative initiatives, the Hon’ble Court was of the opinion that it would be appropriate
to give the Parliament a period of 1 year to cure the defect of under-inclusion in the Marriage
Act.

96. However, in India, no such legislative initiative has been undertaken at all. In fact, the Union
of India and the State Governments have vehemently opposed the present petitions indicating
that there is no intention to legislatively recognize LGBTQAI+ marriages. In such
circumstances, this Hon’ble Court is the only appropriate forum to rescue the Fundamental
Rights of affected persons such as the Petitioner herein.

97. This Hon’ble Court in the case of Vishundas Hundumal v. State of M.P (1981) 2 SCC 410
[S.No. 13, Page 319-322 @Page 321 of Additional Compilation] has held that – if the State
is not willing to rectify certain errors or omissions resulting in discrimination and violation of
Article 14, the Court will step in and rectify the same. The relevant paragraphs are as follows:
“5. Undoubtedly, the error or omission was on the part of the Regional Transport
Authority in not supplying full information to the Special Secretary about all the
valid permits in force at the relevant time and which were either to be curtailed or
cancelled consequent upon the approval of the scheme. This error or omission on
the part of the Regional Transport Authority has resulted in gross discrimination
between the transport operators in the same class in that some have their permits
remaining intact with right to ply their vehicles on the notified route and some
others whose permits are curtailed. That this is discrimination between persons in
the same class does not call for any discussion. May be, the discrimination may
arise out of error or omission on the part of a governmental agency but the question
is: Can it be overlooked on that account? Ramnath Verma case [(1963) 2 SCR 152
: AIR 1967 SC 603] cannot help the respondents in this behalf because a
Constitution Bench of this Court held in that case that discrimination under Article
14 is conscious discrimination and not accidental discrimination that arises from
oversight which the State is ready to rectify. We did not find any willingness on the
part of the State authorities to rectify the error either in the High Court or before
this Court. There was some vague suggestion of another scheme which was under
examination which may ultimately result in rectification of this discrimination. No
concrete or adequate information was laid before the court as to whether that
 41

scheme is pending and how long would it take to reach its final destination. And
further, there is no guarantee that it will be approved. We, however, take note of a
submission by Mr Gambhir, learned counsel for the State Government that the said
scheme would be finalised within a period of six months.

6. Conceding that this was discrimination unconsciously indulged into by

inadvertence or oversight on the part of a governmental agency, by this order we
only propose to rectify the same and not reject the whole scheme. Such an approach
would be destructive of a wholesome effort towards nationalisation of bus transport
which is generally undertaken in public interest. When discrimination is glaring the
State cannot take recourse to inadvertence in its action resulting in discrimination.
The approach is, what is the impact of State action on the fundamental rights of
citizen. In this case denial of equal protection is complained of. And this denial of
equal protection flows from State action and has a direct impact on the fundamental
rights of the petitioners. We, therefore, propose to take a constructive approach by
removing the discrimination by putting the present petitioners in the same class as
those who have enjoyed favourable treatment by inadvertence on the part of the
Regional Transport Authority.”
[Emphasis Supplied]

98. With respect to the concept of “reading into the statute”, it is respectfully submitted that the
same is now a well-recognized in our Indian Jurisprudence and has been adopted by this
Hon’ble Court at various instances. One such recent decision is in the case of Assn. of Old
Settlers of Sikkim v. Union of India, 2023 SCC OnLine SC 38 [S.No. 14, Page 323-380 of
Additional Compilation] where this Hon’ble Court held that the exclusion of “Old Indian
settlers”, who have permanently settled in Sikkim prior to merger of Sikkim with India on
26.04.1975 from the definition of “Sikkimese” in Section 10(26AAA) of the Income Tax Act
was violative of Article 14. Upon holding the “exclusion” as unconstitutional, it was ordered
that all “old Indian settlers” were entitled to the exemption benefits provided under the said
provision in order to sustain the constitutionality of the said provision. It is respectfully prayed
that the writs be allowed and justice be rendered in the present case