Same Sex Marriage: J Sai Deepak argues before CJI Chandrachud led bench in Supreme Court

Summary

The speaker passionately argues against the judicial intervention in societal norms, emphasizing the importance of legislative processes and societal participation in matters of marriage and family. They discuss the separation of powers, the role of the president in legislation, and the potential ramifications of bypassing societal consensus for individual rights. The speech also touches on international law, highlighting the Yogyakarta Principles, and suggests focusing on more pressing issues for marginalized groups before addressing marital rights.

Takeaways

• 🕵️ The speaker emphasizes the distinction between 'Fetters' and 'Powers', suggesting that the petitioners' issue falls within either prohibited areas or areas for judicial adjudication.
• 📜 The first law of thermodynamics is used metaphorically to encapsulate the speaker's position on the matter at hand, indicating a foundational principle.
• ⚖️ The speaker discusses the issue of legislative competence and the separation of powers, suggesting that societal participation in the proceedings is crucial.
• 🏛 The speaker argues against the idea that liberal democracy should exclude social conservatism, questioning the right of society to draw boundaries.
• 💏 The speaker represents a women's organization and highlights the potential individualization of marriage, arguing that it should retain its social character.
• 👪 The speaker raises concerns about the societal implications of changing heteronormative attitudes and the impact on children and single parents.
• 📝 The speaker refers to the Manual of Parliamentary Procedures, particularly Clause 9.2, to argue that legislative proposals should follow a detailed process that includes societal consultation.
• 👥 The speaker asserts that the judiciary should not substitute the societal process of revisiting normative attitudes, advocating for societal engagement over judicial paternalism.
• 🔄 The speaker points out inconsistencies in the interpretation of sexual orientation and gender identity within the judgment, suggesting the need for clarity.
• 🌐 The speaker mentions international law, specifically the Yogyakarta Principles, noting that countries have the autonomy to decide on recognition of marital units.
• 🔮 The speaker concludes by suggesting that while the cause may be worthy, the court should consider the broader implications of judicial intervention on future cases and societal issues.

Q & A

What is the primary argument presented by the speaker in the script?

The speaker argues the distinction between 'Fetters and Powers', emphasizing the central issue of whether certain matters should be within the purview of the judiciary or legislative bodies, and the role of society in such discussions.

What does the speaker mean by 'the first law of thermodynamics' in the context of the argument?

This seems to be a metaphorical reference to a fundamental principle that encapsulates the speaker's position on the matter at hand, rather than a literal reference to a scientific law.

What is the significance of the speaker's mention of 'heteronormative attitudes'?

The speaker is discussing the societal norms around marriage and questioning whether the court should intervene to change these norms, suggesting that society should have the agency to participate in such discussions.

What is the speaker's stance on the role of the judiciary in societal issues?

The speaker argues against the judiciary substituting societal causation with judicial paternalism, suggesting that the court should not be used to circumvent democratic processes.

How does the speaker view the role of the society in legislative changes?

The speaker believes that society, as the chief stakeholder, should have the right to participate in discussions on legislative changes, especially when it comes to societal institutions like marriage.

What is the speaker's position on the individualizing of socio-centric institutions?

The speaker opposes the individualization of socio-centric institutions like marriage, arguing that it demeans the institution and removes its social character.

What does the speaker mean by 'the cause is different from the case'?

The speaker is distinguishing between the underlying issues or concerns (the cause) and the legal arguments being made in court (the case), suggesting that while the concerns may be valid, the legal arguments may not be.

What is the significance of the 'manual for parliamentary procedure of 2019' mentioned by the speaker?

The manual is significant as it outlines the steps for promulgating legislation, which the speaker argues cannot be substituted by judicial mechanisms, emphasizing the importance of following proper legislative processes.

What is the speaker's view on the role of international law in the context of the discussion?

The speaker points out that international instruments, such as the Yogyakarta Principles, do not impose a binding precedent on the issue at hand, leaving it to individual countries to decide.

What is the speaker's final submission regarding the broader implications of the case?

The speaker suggests that while the cause may be worthy, the implications of opening the door to judicial intervention in such matters could have broader consequences for the future, beyond the specific case at hand.

Outlines

00:00

📜 Legal and Constitutional Debate on Social Norms and Marriage

The speaker begins by acknowledging the time constraint and emphasizes the importance of their written submissions, which capture their position on the matter at hand. The main theme revolves around the distinction between 'Fetters and Powers', highlighting the central issue of whether the petitioners' concerns fall within prohibited areas or are subject to judicial review. The speaker raises questions about legislative competence, separation of powers, and the societal agency's right to participate in proceedings that could change heteronormative attitudes. They argue that the petitions' focus on individualizing marriage demeans its social character and challenges the societal norms without proper legislative process. The speaker also discusses the role of the president in the legislative process under Article 111 of the Constitution and the importance of societal participation in matters of social legislation.

05:03

📘 Judicial Overreach and the Manual of Parliamentary Procedures

This paragraph delves into the intricacies of the legislative process as outlined in the Manual of Parliamentary Procedures, specifically focusing on the pre-drafting stage of a legislative proposal. The speaker argues against the judicial mechanism substituting the legislative steps, emphasizing the importance of societal participation and the role of the president in the legislative process. They point out inconsistencies in the court's interpretation of sexual orientation and gender identity, suggesting that judicial revisitation may not be the optimal approach. The speaker also addresses the issue of international law, noting that the Yogyakarta Principles leave the recognition of marital units to individual countries, thus not imposing a binding precedent. The paragraph concludes with a cautionary note on the implications of judicial intervention for future cases and societal issues, advocating for a more comprehensive approach to addressing the concerns of transgender activists beyond marriage rights.

10:42

📝 The Limits of Judicial Interpretation and Societal Priorities

In the final paragraph, the speaker discusses the limitations of judicial interpretation, particularly in the context of extending previous judgments to new areas such as marital transactions. They highlight potential inconsistencies in the court's understanding of gender identity and sexual orientation, and the risks of judicial reinscription that may rewrite legislative history. The speaker also emphasizes the importance of addressing more immediate and fundamental issues faced by transgender individuals, such as trafficking and lack of legitimate livelihoods, suggesting that these needs should be prioritized before advancing other rights. The paragraph concludes with a plea for a balanced approach that considers both the legal and societal implications of the court's decisions.

Keywords

💡First Law of Thermodynamics

The First Law of Thermodynamics, also known as the Law of Energy Conservation, states that energy cannot be created or destroyed in an isolated system, only transformed from one form to another. In the context of the video, it is metaphorically used to encapsulate the speaker's entire legal position, suggesting that their argument is based on a fundamental principle that is unchangeable and foundational, much like the law of energy conservation in physics.

💡Fetters and Powers

In legal terms, 'fetters' and 'powers' refer to the limitations and authorities respectively that are placed upon certain entities, such as courts or government bodies. The speaker uses these terms to discuss the scope of judicial authority and legislative power, emphasizing the distinction between what is prohibited and what is within the jurisdiction of the court to adjudicate, which is central to the legal argument being presented.

💡Legislative Competence

Legislative competence refers to the authority of a legislative body to make laws within a certain jurisdiction or on certain subjects. The speaker mentions this in the context of questioning whether the court has the right to intervene in matters that are traditionally within the domain of the legislature, highlighting the importance of the separation of powers in a democratic system.

💡Separation of Powers

The principle of separation of powers is a fundamental concept in constitutional law that divides the functions of government among separate and independent branches to prevent any one branch from gaining too much power. The speaker argues that the petitions before the court challenge this principle by questioning whether the judiciary is overstepping its bounds by engaging in matters that should be left to the legislative or executive branches.

💡Heteronormative Attitudes

Heteronormative attitudes refer to the belief that people fall into distinct and complementary genders with natural roles in life, often assuming that sexual and romantic relationships are inherently between a man and a woman. The speaker discusses the societal implications of challenging these attitudes, particularly in the context of marriage and family structures, and the role of the court in facilitating such societal change.

💡Civil Society Organization

A civil society organization (CSO) is a group of individuals or community organizations that manifest interests and ideas, act relatively independently of government, and seek to influence public policy and resource allocation. The speaker represents a women's organization that also advocates for children's rights, emphasizing the role of such organizations in participating in societal discussions and influencing legislation.

💡Marriage as a Socio-Centric Institution

The concept of marriage as a socio-centric institution implies that marriage is not just a private contract between two individuals but has social implications and is deeply intertwined with societal norms and values. The speaker argues against the individualization of marriage, stating that it diminishes the social character of the institution and excludes societal participation in its definition.

💡Article 111 of the Constitution

Article 111 of the Constitution, as referenced in the script, pertains to the powers of the President in relation to legislation, including the right to receive bills for assent, withhold assent, and recommend amendments. The speaker uses this to argue that the legislative process involves multiple stakeholders, including the President, and that the court should not substitute its judgment for the established legislative process.

💡Manual of Parliamentary Procedures

The Manual of Parliamentary Procedures is a document that outlines the rules and processes followed in a legislative body. The speaker cites this manual to argue that there are established steps for considering legislative proposals, including consultation, review for legal and constitutional feasibility, and public opinion, which the court should not bypass in its decision-making.

💡Judicial Paternalism

Judicial paternalism refers to the idea that the judiciary knows what is best for society and makes decisions on its behalf, often without direct input from the public. The speaker warns against this concept, arguing that it can undermine democratic processes by replacing societal causation with judicial decisions, which may not reflect the will or interests of the broader community.

💡Yogyakarta Principles

The Yogyakarta Principles are a set of international guidelines applicable to the human rights of transgender and gender-diverse people. The speaker mentions these principles to argue that international law does not impose a one-size-fits-all approach to recognizing marital units and that countries have the autonomy to decide on these matters, suggesting that judicial intervention may not be necessary or appropriate.

Highlights

The speaker emphasizes the limited time of 20 minutes to present their position.

The speaker refers to the first law of thermodynamics as a metaphor for encapsulating their position in the debate.

A central issue is the distinction between 'Fetters and Powers' in the context of the petitioner's argument.

The speaker discusses the societal right to agency in the proceedings, questioning if society has a right to participate.

The concept of a 'liberal democracy' is questioned, exploring whether it excludes social conservatism.

The speaker represents a women's organization and discusses the implications of individualizing marriage.

The speaker argues that changing societal norms through the court undermines the democratic process.

The role of the judiciary is questioned, with the speaker suggesting it should not substitute societal causation.

The speaker discusses the legislative process under Article 111 of the Constitution, including presidential prerogatives.

The importance of the manual of parliamentary procedures for understanding the legislative process is highlighted.

The speaker criticizes the use of judicial mechanisms to bypass societal discussions on normative attitudes.

The speaker argues that judgments should not be read as statutes, cautioning against judicial paternalism.

Inconsistencies in the judgment are pointed out, questioning the clarity of definitions like sexual orientation and gender identity.

The Yogyakarta Principles are mentioned, noting that they leave the recognition of marital units to individual countries.

The speaker warns of the implications of opening the door to judicial intervention in societal matters.

The speaker suggests focusing on more pressing issues for transgender activists, such as trafficking and livelihoods.

The speaker concludes by emphasizing the importance of addressing foundational needs before moving on to other issues.

Transcripts

permission given that I have only 20

minutes and which I expect may not even

happen I'll do my best to Simply

formulate my position and as opposed to

leaning out from anything kindly alarm

just to engage with the bench because my

written submissions capture my position

that's already been shared

so there are two aspects just give us

one second we'll just go to your written

submission so as we are arguing we can

also keep a track of your submission if

I'm Eminence uh an additional returns

have additional submissions or the

original one the original the additional

is a one page note and I'll anyway

address it so my loss could perhaps

refer to the first written submission

so what is broadly the line of uh if I

may say so

the first law of thermodynamics

effectively encaps encapsulates the

entire position when it comes to physics

and from there or curologies flow so the

central position that is effectively

placed before my Lord is with respect to

the distinction between Fetters and

Powers

which is to say that this particular

area which

the petitioners seek to espouse before

my lords is an area which Falls within

either prohibited areas or is it

something that falls within the area for

my large adjudication that is the

central issue and I think that is the

forest that is thought to be presented

before my lords I am here to perhaps

unpack a few leaves for my last

consideration

the question of legislative competence

is just one aspect of the issue which

hinges on separation of powers but I go

a step further which is to say

that when the petitions raise the

question of change in heteronormative

attitudes does the society have a right

of agency to participate in these

proceedings or not at least in this

particular issue or not

because this is not a question of

separation of territories between

different organs of the state but it

fundamentally hinges on the right or the

agency of the society to participate in

this particular discussion and that is

the central problem in these kind of

issues and subjects are taken by the

court of law as opposed to leaving it

for legislative prerogative to apply its

mind

Point number two during the course of

these proceedings in the last two weeks

quite a few times I've heard the

submission being made that it's a

liberal democracy it's a liberal

documents a liberal documents on and so

forth does it mean that social

conservative has absolute conservatism

has absolutely no place within the

meaning of the Constitution does it mean

that the society does not have the right

to draw a few red lines to basically say

thus far and no further

that is the central question

I represent a women's organization which

equally represents the right of children

and therefore as a civil society

organization the question that is being

raised is that the nature of the prayers

raised in the petition has the

consequence of individualizing a

socio-centric institution such as

marriage

which is to say as long as it is a

transaction that takes place between two

individuals who are consenting and who

are not prohibited by any prohibition of

degree so to speak the rest of the

society has absolutely no say as far as

this institution is concerned this I'm

sorry to say fundamentally demeans the

institution of marriage and takes away

its social character

so these are the meta questions that I

think which arise for concentration

before this honorable Court when these

kind of practitioners are fine I am

sorry to say this and let me try and

perhaps tone down the rigor of my

submission to the extent of saying I

believe that they have a cause I just

don't believe they have a case

the cause is different from the case

and it is important for the court to

seriously consider one aspect here

when there are issues of legislative

competence this another figure so to

speak which is involved and that figures

Powers come under article 111 of the

Constitution

which is to say

that if a legislative proposal

ultimately meets with the consent of

both the houses ultimately it has to go

to The Honorable president and the

honorable President also has the power

to recommend amendments to a legislation

therefore this is not just a question of

legislative prerogative or legislative

sovereignty either from an external or

an internal perspective but there are

multiple dramatist personnel and

stakeholders with this particular

equation the society being the chief

because ultimately the petitions raised

the question of changing the Paradigm

with respect to heteronormative

Attitudes of legislations in general it

is not just about the SMA

plus my lords is not dealing with a

religion specific legislation here it is

the SMA which means all the more the

society's participation when it comes to

the SMA is warranted is mandated as

compulsory

because at least if it were to be with

respect to certain let's say religion

specific legislations it can be said

that there is an identifiable Group

which has a locust to argue here but

when it comes to the SMA it can't be the

argument that only those who subscribe

to the values of SMA are allowed to

participate in these proceedings

secondly as has been already submitted

section 21 of the SMA has a direct

bearing on personal loss so even with

respect to SMA the society has a right

to participate

the reason why the additional written

submissions become relevant is because I

filed an annexure which is the manual

for parliamentary procedure of 2019

which is published by the ministry of

parliamentary affairs

and that particular manual so to speak

has chapter 9 which deals with the

business of legislation

close to 30 Clauses exist

detailing the manner in which a

legislative proposal is to be considered

in the first place how the ball is set

rolling

and in that if I might if I refer to my

additional written submission here

I'll walk my Lots through the relevant

portion here

additional written submission will not

as a copy being given to the other side

please send it over

effectively has captured my position

with respect to article 111 but the

second paragraph is where I placed

Reliance on the manual of parliamentary

procedures does my lots have it yes we

have it for the benefit of the benchment

I just read this out

which para uh

9.2 exactly exactly

so para two so I'm reading out from the

written submission because

right right right and the uh the

document itself is annexed so let me

just read out these submission Millers

yes please

yes in addition to the above please in

addition to the above so can I just read

out para one for the sake of completion

I'm so sorry may I please

yes it is humbly submitted that apart

from circumvention of legislative

prerogative and sovereignty violation of

the doctrine of separation of powers

seriously impinges and encroaches upon

presidential prerogative under article

111 of the Constitution

under the said article firstly The

Honorable president has the right to

receive the bill for his Ascent after it

is passed by both houses of Parliament

this translates to countervailing

obligations on the parliament to present

the bill for the honorable president's

assent further under the article not

only does The Honorable president have

the right to withhold SN but also the

power to recommend amendments and also

reconsideration of certain specific

Provisions in a certain bill now

paragraph number two

in addition to the above Reliance is

also placed on the manual of

parliamentary procedures issued by the

ministry of parliamentary Affairs in

July 2019 which contains a specific

chapter chapter 9 titled legislation my

apologies for the speed I'm just trying

to keep up with time here please

the said chapter spells out in great

detail the steps to be undertaken in

promulgating a legislation critically

Clause 9.2 deals with a pre-drafting

stage of a legislative proposal which is

divided into four broad stages that

include consultation between the

concerned Ministry to which the

legislative proposal relates and the

ministry of Law and Justice critically

the latter Ministry shall review the

legislative proposal for legal and

constitutional feasibility validity as

also and here I quote necessity and

desirability of such a proposal

approval of the cabinet followed by an

Ascent assentment sorry ascent and sorry

assessment underclass 9.6 of the

expenditure involved critically class

9.7.1 NSR is securing the recommendation

of The Honorable president after the

introduction of the bill which is

different from the essence sort under

article 111

then milots class 9.12 speaks of the

possible referral of that particular

Bill to a select committee or a joint

committee or for circulation for public

opinion if I may say so and I say this

with the deepest of respect and the

greatest humility that I can command at

this point

that the judicial mechanism cannot be a

substitute to any of these steps

especially when it comes to such a

serious issue

and I draw from Hindu law here that the

purpose of marriage or the object of

dampattia is a child

is procreation now therefore comes the

central question with respect to all the

permutations and combinations which were

not supposed by way of circumstances

what happens to a single child what

happens to a single parent what happens

if it's a homosexual single parent so on

and so forth allow me to answer this

question in a slightly different fashion

public morality is decided by normative

attitudes the norm is decided primarily

by the mainstream this is not a

majoritarian argument this is a

statement of fact in a democracy

Point number two

when normative attitudes are sought to

be Revisited

to say that those who constitute the

norm don't get to participate in this

discussion

because that particular process and that

particular let's say dance of democracy

is sought to be circumvented by using

the instrumental of the court to secure

a certain outcome I'm sorry to say

defeats the purpose of advocacy

those who are interested in convincing

the society are expected to engage with

the rest of the society to make good

their cause

the Judiciary cannot be a substitute to

this particular process because then

that effectively replaces societal

causation with I'm sorry to use the

words judicial paternalism that can't

happen

three

the benefit of revisitation

offer judgment with respect to such

sensitive issues even if it exists by

way of clarifications I'm sorry to say

it's not an adequate substitute it's a

sub-optimal substitute

because if the principle that has been

established by several judgments is that

a judgment is not to be read in the

manner of a statute

then there is no Precision which can be

imparted to the language or findings and

therefore the principles of statutory

interpretation don't apply so we are

left with greater uncertainty

yes yes please

the point that I'm perhaps trying to

make and which is what I'm trying to

draw the quotes attention to is that the

nulls are judgment that they placed

lines upon extensively there is a plus

and there is perhaps a downside to it

the plus is the Judgment must be read in

its context and the issue was the

recognition of a third gender that was

what it was limited itself to and

therefore to extrapolate the findings of

the particular judgment which primarily

concerned itself with self-perception

self-identification in the context of

gender identity

to extend it to a marital transaction or

a managed like transaction

is to read a judgment for what it is not

secondly

there are only three in places I think

we perhaps are aware of how to read

these judgments please we don't need it

need to be taught I'm sorry I understand

I'm just placing Reliance on this I'm

just making sure you understand that

these are these contexts please whether

their analogies or not is up to us

please watch I'm grateful

the second point is

in fact on a closer reading of this

particular judgment

certain inconsistencies emerge between

the two opinions of the very same bench

in terms of what constitutes sexual

orientation what constitutes gender

identity

now that is natural because there is a

discussion that's going on there it is

not to be read in the same manner as a

statute

in fact therefore the judgment

which doesn't exactly help their

position also points to a certain

problem with respect to judicial

revisitation of some of these aspects

and the Judgment of just of of Arun

Kumar of The Madras high court is

actually in the teeth of the submissions

being made here which is to say narrow

language being expanded through judicial

interpretation contrary to legislative

intent in history

is to rewrite legislative history and

judicial reinscription which is

retrospective in nature may not be

exactly permissible that's one

then we'll add the submission with

respect to international law

all the general instruments apart

the yogicarta principle specifically

cost 24 Point e

specifically leaves it to countries to

decide if they wish to have recognition

with respect to marital units so it's

not as if there is some kind of a

binding precedent here or there's not

there's no International instrument that

says that you shall

I am not arguing for it should not be

kindly let this caveat is important I'm

simply saying

if the door of judicial intervention and

this matter is open for one case even

though the cause may be worthy

what does it do for the future because

ultimately it's not just it's not just a

question of one matter

it's a question of the future as well so

therefore there are specific aspects

that relate to the issue in question and

there are General aspects that relate to

the separation of powers and societal

participation that go well beyond this

matter

in light of this Mirage my only humble

submission is

that there are other issues to be dealt

with and Alignment is just point us out

and use this particular Forum to

Advocate only one aspect having actually

engaged with certain transgender

activists and also having worked with

them I know for a fact that one of their

biggest problems

is trafficking

them being pushed into prostitution them

not having legitimate livelihoods I am

not reducing or dismissing anybody's

concerns with respect to what is their

priority let me clarify that I'm not

making the submission at all but these

are certain Maslow's needs which have to

be completed first and which have to be

addressed first before we get to the

next step that's all I have to submit

I'm so grateful for the kind please