New Delhi: In February last year, Solicitor General Tushar Mehta told the Supreme Court that we need not be influenced by judgments of Western jurisdictions. The Supreme Court was then hearing a plea by a former woman judicial officer for reinstatement, even though she had resigned following an inquiry into her allegations of sexual harassment against a Madhya Pradesh high court judge.
A three-member Inquiry Committee appointed by the Rajya Sabha chairperson had given a clean chit to the judge, but noted that her resignation from her post of additional district judge was due to “unbearable circumstances having no other option”. The Committee had also opined that she must be reinstated since her resignation was not voluntary. The woman was represented by senior advocate Indira Jaising in the Supreme Court.
Jaising’s reliance on foreign jurisprudence in the course of her arguments in defence of her client led to Mehta – who then represented the Madhya Pradesh high court – to respond that we have our own system, problems and ethos and we need not be influenced by what is stated in some other jurisdictions.
Jaising, while responding to Mehta, took strong objection to his “nationalistic” attitude towards jurisprudence. Jaising said in tongue-in-cheek that she admired Mehta’s nationalism, but as an internationalist, she would look for light everywhere, and that she would place before the court judgments from various jurisdictions, and that it is up to the court whether to accept it.
Also read: Marriage Equality Is Not Just an Issue of Rights but Also Mental Health
The bench of Justices L. Nageswara Rao and B.R. Gavai, which heard the case, accepted Jaising’s contentions and directed the reinstatement of the additional district judge.
On Wednesday, in the course of the hearings before the Constitution Bench in Supriyo @ Supriya Chakraborty vs Union of India, Mehta apparently found merit in what Jaising had argued last year. The SG, while defending the Union government’s denial of marriage rights to sexual minorities, relied on the dissenting judgments in the US cases Obergefell vs Hodges (2015) and Lockner vs New York (1905).
In Obergefell vs Hodges, Chief Justice John Roberts had written a dissenting opinion, which was joined by Justices Antonin Scalia and Clarence Thomas. Chief Justice Roberts rejected the notion that same-sex marriage bans violated a right to privacy and held that they were rationally related to a government interest in preserving the traditional definition of marriage. Both Justices Scalia and Thomas wrote separate dissenting opinions, which were cited by Mehta. While Justice Scalia attacked majority opinion for lacking even a thin veneer of law, Justice Thomas opined that majority view upholding same-sex marriage threatened religious liberty. Justice Samuel Alito, in his dissent, accepted the contention that same-sex marriage bans serve to promote procreation and the optimal childrearing environment.
In Lochner vs New York, the US Supreme Court struck down a New York state law setting 10 hours of labour a day as the legal maximum in the baking trade. The law had established minimum sanitation standards, including prohibitions against keeping domestic animals in bakeries and against workers sleeping in the bake room. A key provision was a clause limiting the working hours to 10 hours per day and 60 hours per week.
John Lochner, a local bakery owner who was found guilty of violating the law, took the case to the Supreme Court after losing in the New York’s Court of Appeals, which ruled in favour of the law. In this case, Justice John Marshall Harlan delivered the main dissent, joined by Justices Edward White and William Day. The dissent argued that the liberty of contract had to be subordinate to the police power.
Also read: Marriage Equality: The Answer May Lie in Section 15 of the Special Marriage Act
Lochner’s relevance to Supriyo was that the former was destined to become a symbol of judicial interference with the democratic process, and Holmes’s dissent became a rallying cry for the progressive movement in the United States.
On Wednesday, Mehta also relied on the recent US Supreme Court’s decision in Dobbs vs Jackson Women’s Health Organization, which held that there is no constitutional right to abortion. When Chief Justice of India D.Y. Chandrachud expressed his doubts about its relevance, saying “we are far beyond it and fortunately so”, Mehta justified it saying he did so only to underline that the judiciary cannot legislate, and the authority to regulate abortion was returned to the people and their elected representatives.
SG’s other contentions
Mehta argued that any right which was pre-existing gets recognised, and that there is no absolute right to marry even for heterosexual couples.
Mehta argued that there is intrusion to privacy rights, even in marriage, the only exception being the bedroom. He suggested that law recognises impotence as a ground for divorce. “You have to come out and prove, though it breaches your privacy,” he said.
“You can’t change the character of the law. Court cannot substitute the legislative intent, which is otherwise manifest,” he submitted.
On LGBTQI+, he asked what the + stands for.
He contended that there are several different shades and spectrums and that we are dealing with an unidentified class of persons. “How you will reconcile different spectrums and shades. We are dealing with an unidentifiable class. Would it be prudent or possible to lay down regulations… even if you confer them the status of socio legal institution of marriage?” he asked the bench.
Mehta will continue his submissions on Thursday.