Tag: 1969

Delhi HC Seeks Replies from Centre on Plea Seeking Recognition of Same-Sex Marriages

The petition urged the court to declare that a spouse of foreign origin of an Indian citizen or an OCI cardholder is entitled to apply for registration as an OCI.

New Delhi: The Delhi high court on Tuesday issued notice to the Union government on a plea seeking recognition of same-sex marriages under the Citizenship Act, 1955, Foreign Marriage Act, 1969, and the Special Marriage Act, 1954.

According to LiveLaw, the bench has sought replies from the Ministry of Home Affairs, the Ministry of External Affairs and the Consulate General of India, New York, and listed the matter for hearing on August 27 along with a batch of similar pleas.

The petition, which is filed by Joydeep Sengupta, a Canadian citizen and an Overseas Citizen of India (OCI) cardholder, and his partner Russell Blaine Stephens, urged the court to declare that a spouse of foreign origin of an Indian citizen or an OCI cardholder is entitled to apply for registration as an OCI under the Citizenship Act regardless of the gender, sex or sexual orientation of the applicant spouse.

The plea said that since section 7A(1)(d) of the Citizenship Act, 1955, does not distinguish between heterosexual, same-sex or queer spouses, a person married to an OCI, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an OCI card.

11.30am Queer Petition Final by The Wire

According to the report, the petitioners said they were expecting their first child in July 2021. And Stephens said he wished to apply for the OCI status under the Citizenship Act as a spouse of an OCI cardholder. This would enable him to visit India, even during the ongoing COVID-19 pandemic, and spend time with Sengupta’s family.

According to The Hindu, the plea sought a direction restraining the Consulate General of India, New York, from declaring a spouse of an OCI applying for an OCI card to be ineligible for the same, merely on the ground that they were in a same-sex marriage or queer (non-heterosexual) marriage.

“The right to marry a person of one’s choice as an essential component of the right to autonomy, privacy within Article 21 has been recognised by a catena of judgments in India,” the plea added.

The plea also asked to declare that the Foreign Marriage Act, 1969 and the Special Marriage Act, 1954 violate Articles 14, 15, 19 and 21 of the Constitution of India as they exclude same-sex marriages or queer marriages. It said that the Acts should recognise marriages between consenting adults irrespective of the gender, sex and sexual orientation of the parties.

Also read: Why the International Law Angle Is Missing From Cases on Same-Sex Marriages

Centre’s opposition to same-sex marriages

The Supreme Court on September 6, 2018 decriminalised homosexuality under Section 377 of the Indian Penal Code. However, despite that, nearly three years after the landmark judgment was delivered by the apex court, the Union government is still to go the extra mile.

The Union government on February 26 sought dismissal of petitions seeking legislation of same-sex marriage, and told the Delhi high court that marriage in India necessarily depends upon “age-old customs, rituals, practices, cultural ethos and societal values”. The court was hearing a plea that sought marriage rights for the gay community under the Hindu Marriage Act, 1955.

The government further said that same-sex individuals living together in a relationship is “not comparable” with the “Indian family unit concept” of a husband, wife and children, arguing that the institution of marriage has a “sanctity”.

“In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs… societal values,” it said.

It further asserted that the question as to whether same sex marriage can be given legal recognition should be left to the legislature.

Patna HC Pulls Up Bihar Govt for Not Disclosing COVID Deaths on Digital Platforms

The court ordered the Bihar government to disclose information accurately, so that the third wave of COVID-19 can be prevented in the state. 

New Delhi: The Patna high government took exception to the Bihar government’s “reluctance” to upload accurate and updated information on digital platforms on the number of COVID-19 deaths in the state, LiveLaw has reported.

While pointing out that the state government is under an obligation to the residents of Bihar state to provide information on deaths, especially during the pandemic, a division bench of Chief Justice Sanjay Karol and Justice S. Kumar issued an order to update the digital portal maintained by the Bihar government (births and deaths and the state) immediately.

The court said that the Registration of Births and Deaths Act, 1969 (Act No. 18 of 1969) of Bihar and the Right to Information Act, 2005 provide a right to an individual to access accurate information, and therefore, digital portals should be made accessible to the general public with regular and timely updates.

While reminding the Bihar government that the right to information is part of Article 21 (right to life) of the Indian constitution, the court pointedly asked if the 10 core people of Bihar do not have a right to know the number of deaths that occurred during the pandemic. It also queried if the Bihar government does not have a duty to “disclose either voluntarily or as mandated by law” the number of COVID-19 deaths in the state.

“In our considered view, the resistance is uncalled for, for such action is neither protected by any law nor in consonance with good governance’s settled principles,” LiveLaw quoted judges as saying.

Also read: Bihar’s Official COVID Death Toll Is Far Lower Than What Crematoriums Are Reporting

Earlier, on June 12, the advocate general, representing the state government, had placed the blame on public representatives by stating that they were not being responsible for uploading the relevant information on digital portals, while also contending that the state government was not mandated under any law to disclose information of the number of deaths on the digital portal.

To this, the court pointing to the Bihar Registration of Births and Deaths Rules, 1999 said that the particular piece of law clearly noted that the government is under an obligation to provide information to the public, and hence the government’s view of not disclosing the information is “legally unsustainable”. It also specifically stressed that RTI Act has placed the onus on authorities to suo motu provide and disseminate information unless it is protected by law.

The court further went on to state that it was empowered under Entry 30, List III, Seventh Schedule of the constitution to come out with legislation or delegate the work to authorities concerned if the state government, hypothetically speaking, believed that there are no rules that compel it to provide information to the public.

“Also, in maintaining the correct statistics so that we as a nation can be prepared for the Third Wave of COVID Pandemic,” the court added.

The court ordered elected representatives to upload information regarding deaths in their constituencies on the digital portal within 24 hours. It also instructed officials concerned to protect the identity of individuals while uploading information keeping with the spirit of the right to privacy.

The Wire has reported that Bihar is underreporting COVID-19 deaths based on the data gathered from crematoriums and municipal corporations.

The data released by the Bihar health department from April 1 to May 20 2,663 people had died due to  COVID-19 in the state. However, in the same period, five crematoriums in Patna and one each in Bhagalpur and Muzaffarpur recorded 3,940 deaths due to COVID-19 – 1,277 deaths more than the official figure.

These figures don’t include most deaths which occurred in villages, because relatives largely cremated bodies in the villages itself.

‘Don’t Need Marriage Certificate for Hospitals’: Centre Pans ‘Urgency’ of Same-Sex Marriage Pleas

‘Nobody is dying because they don’t have marriage certificate,’ the Solicitor General told the Delhi HC in response to senior advocate Menaka Guruswamy noting that lack of legal validity affected access to treatment.

New Delhi: The Centre told the Delhi high court that an urgent hearing of pleas seeking recognition to same-sex marriages was not warranted under current conditions.

“You don’t need marriage certificate for hospitals, nobody is dying because they don’t have marriage certificate,” the Union government said, according to LiveLaw. The submission was made by Solicitor General Tushar Mehta.

A bench of Justices Rajiv Sahai Endlaw and Amit Bansal were assembled to hear the petitions.

Unhappy with the bench’s roster, the Centre also submitted a letter asking for adjournment and said that the court was hearing only cases that were “extremely urgent”.

The bench adjourned hearing to July 6, noting that the “Union of India may obtain clarification with respect to the roster,” according to a tweet by Bar and Bench.

On Solicitor General Mehta’s assertion that law officers were “struggling with COVID issues” and that “Right now as government, our focus is on real urgent issues,” senior advocate Saurabh Kirpal said in court that the (Union) government must be neutral when it comes to urgency, which is a subject that a court must decide.

When senior advocate Maneka Guruswamy told the court that admission in hospitals and treatment itself were proving hurdles without valid marriage certificates for same-sex couples, Solicitor General Mehta made his comment on not needing marriage certificates for hospitals.

Since the adjournment, a Twitter user pointed out that while hospitals do not ask for marriage certificates, they ask for the ‘next of kin’, which is difficult to establish without a legally valid certificate.

Responding to petitions seeking recognition of same-sex marriages under the Hindu Marriage Act, Special Marriage Act and the Foreign Marriage Act, the Centre in an affidavit in February had said marriage between individuals cannot be treated as a private affair, as they invoke “age-old customs, rituals, practices, cultural ethos and societal values” of India.

There is a “legitimate state interest” in limiting recognition of marriages to opposite-sex couples, the Centre had argued.

The Centre’s assertion came despite the Supreme Court verdict in Navtej Singh Johar vs Union of India case, which struck down Section 377 of the Indian Penal Code, that had until then criminalised homosexual behaviour.

In one of the petitions that the Delhi high court is currently hearing, a psychiatrist and a therapist had asked that the right to choice of partner be enforced by court. When the couple had approached a marriage officer of Kalkaji in southeast Delhi to get married last year, the officer had refused to solemnise their marriage under the Special Marriage Act, because they are a same-sex couple.

Another petition was filed by a United States-based couple, demanding registration of their marriage under the Foreign Marriage Act.

‘Against Indian Ethos’: Centre Opposes Same-Sex Marriages in Delhi HC

The Centre said that there is a “legitimate state interest” in confining recognition of marriages to opposite-sex couples, as marriage is a “solemn institution”.

New Delhi: The Centre on Thursday opposed a batch of petitions seeking recognition and registration of marriages between same-sex couples and told the Delhi high court that there is a “legitimate state interest” in limiting recognition of marriages to opposite-sex couples.

Responding to petitions seeking recognition of same-sex marriages under the Hindu Marriage Act, Special Marriage Act and the Foreign Marriage Act, the Centre in an affidavit said marriage between individuals cannot be treated as a private affair, as they invoke “age-old customs, rituals, practices, cultural ethos and societal values” of India.

The Centre said recognition of same-sex marriages is not in consonance with the “Indian family concept” of husband, wife and children, and essentially goes against a “solemn institution” between “a biological man and a biological woman”.

It also stated that marriage between two individuals of the same sex is neither recognised “nor is it codified under any statutory laws or uncodified personal laws.”

Also read: Centre’s Counsel Calls Same-Sex Marriage a ‘Peculiar Situation’, Invokes Sanatana Dharma

Referring to the Supreme Court verdict in Navtej Singh Johar vs Union of India case, which struck down Section 377 of the Indian Penal Code, the Centre argued that it was “only a limited declaration to decriminalise a particular human behaviour, which was a penal offence under Sec 377 IPC”.

It further stated that neither the Puttuswamy judgment (one of India’s most noted privacy cases) nor the Navtej Singh Johar case referred to above allow for the recognition of marriage between individuals of the same gender.

The affidavit further stated that the question of whether or not to legalise same-sex marriages is not under the purview of courts, and courts cannot create a new right through the “process of judicial adjudication”. It added that it is for the legislature to decide on the question, and hence the petitioners’ pleas are totally “unsustainable, untenable and misplaced”.

A gay rights activist holds a placard during a rally supporting same-sex marriage, in Sydney, Australia May 31, 2015. REUTERS/David Gray

Stating that “Western ideas without any basis in the Indian constitution” cannot be imported into the Indian context, the affidavit argued, “While a marriage may be between two private individuals having a profound impact on their private lives, it is submitted that marriage, as a public concept, is also nationally and internationally recognised as a public recognition of relationship with which several statutory rights and obligations.”

“Statutory recognition of marriage as a union between a ‘man’ and a ‘woman’ is intrinsically linked to the recognition of the heterogeneous institution of marriage and the acceptance of the Indian society based on its cultural and societal values,” the Centre added.

Make marriage laws inclusive: Petitioners 

The petitioners demanded that the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969, which provides for marriages of citizens of India outside India, be interpreted to include marriages of same-sex couples as well.

One of the petitions was filed by two Delhi-based mental health professionals, Dr Kavita Arora and Ankita Khanna on October 5, 2020. When the couple approached a marriage officer of Kalkaji in southeast Delhi to get married last year, the officer had refused to solemnise their marriage under the Special Marriage Act, because they are a same-sex couple.

Also read: ‘Same-Sex Marriages Not Recognised by Our Laws, Society and Our Values’: Centre To Delhi HC

Their petition demanded the registration of their marriage as well as a declaration that the Special Marriage Act is unconstitutional as long as it does not provide for the solemnisation of marriage of a same-sex couple.

Another petition was filed by United States-based Vaibhav Jain and Parag Mehta, demanding registration of their marriage under the Foreign Marriage Act. Jain is an Indian citizen, while Mehta is an overseas citizen of India.

Jain and Mehta were married in Washington in a court ceremony.

After their court registration, they had a traditional Jain wedding in March 2019 and a reception in Delhi in November 2019. Following this, they approached the Indian Consulate in New York in March 2020 for the registration of their marriage under the Foreign Marriage Act. But they were refused registration.

Jain and Mehta, in their petition, said that the Foreign Marriage Act should be read to recognise marriages between consenting adults regardless of the gender and sexual orientation of the parties.