Advocate J Sai Deepak, known for his pointed arguments and popular presence on social media, took his position before the bench led by Chief Justice DY Chandrachud in the Supreme Court of India. The ongoing proceedings revolved around the crucial matter of same-sex marriage recognition. In a significant development, Sai Deepak presented compelling arguments on behalf of a women's forum that staunchly opposes the batch of pleas seeking the recognition of same-sex marriage.

On a significant day in the Supreme Court, the Constitution Bench, comprised of esteemed judges including Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha, eagerly listened to the submissions put forth by Advocate J Sai Deepak. Representing a women's forum that firmly opposed the pleas seeking recognition of same-sex marriage, Sai Deepak was granted the opportunity to present his arguments.

As the proceedings commenced, Chief Justice Chandrachud requested Sai Deepak to outline his line of argument. Mindful of the limited time available, Sai Deepak acknowledged that he had just twenty minutes and chose to present his position without relying on written notes or documents. With confidence and clarity, he embarked on articulating his stance on the matter at hand.

He began by emphasizing the significance of the first law of thermodynamics in encapsulating the entire position of physics, suggesting that all corollaries flow from it. He highlighted the central issue at hand, which revolves around the distinction between fetters and powers. He questioned whether the subject matter the petitioners seek to address falls within the prohibited areas or falls within the scope of the court's adjudication.

He started by saying, "The first law of thermodynamics effectively encapsulates the entire position when it comes to physics from there all corollaries flow. So the central position that is effectively placed before my lords 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 falls within either the prohibited areas or it is something which falls within the area for my lords' adjudication. That is the central issue."

Moving forward, Sai Deepak explored the question of legislative competence, which is related to the separation of powers. He argued that the case goes beyond legislative competence and delves into the societal right of agency to participate in the discussion of changing heteronormative attitudes. He emphasized that this issue is not merely about the separation of territories between different organs of the state but fundamentally hinges on the society's agency to engage in this specific discourse. He stated that this problem lies at the core of such issues taken up by the court instead of being left to legislative prerogative.

Continuing, he submitted, "The question of legislative competence is just one aspect of this issue which hinges on separation of power, 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 of not or 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 of 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 up by the court of law as opposed to leaving it for legislative prerogative to apply its mind".

They Have a Cause, But Not a Case

Commenting on the case of the Petitioner, J Sai Deepak contended that "during the course of these proceedings over the last two weeks we have heard the submission being made, that it is a liberal democracy, liberal documents so on and so forth. Does it mean that social conservatism has absolutely no place within the remaining of the constitution? Does it mean society does not right to draw a few red lines to basically say thus far and no further? That is the central question".

He submitted that he represents a women's organization which equally represents the rights of children. He said that as a civil society organization, the question that has been raised is whether the nature of the prayers raised in the petition has the consequence of "individualizing a socio-centric institution such as marriage".

He explained "individualization" by submitting that it is the argument that as long as it is a transaction between two individuals who are consenting and who are not prohibited by any prohibition of degrees, the rest of the so society has absolutely no say as far as this institution is concerned. He said that this fundamentally demeans the institution of marriage and takes away its social character. "I am sorry to say this, and let me try and tone down the rigour of my submission, to the extent of saying, I believe they have a cause- I just don’t believe they have a case", he said.

"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 figure's powers come under Article 111 of Constitution, which is to say that if a legislative proposal ultimately meets with the consent of both the houses, ultimately it has to pass and the Hon’ble president has the power to recommend amendments to a legislation", he argued. Article 111 talks about the assent of the President required by laws passed by the Parliament.

He submitted that the petitions raised the question of changing the paradigm with respect to the heteronormative attitude of legislations in general and that it is not just about the Special Marriage Act. He submitted that the Court is not dealing with any religion-specific law, but the Special Marriage Act and hence participation of the entire society is warranted in the debate. He said that with respect to religion-specific laws, there is an identifiable group which has a locus to argue, but that for Special Marriage Act it can’t be that only those who "subscribe to the value of the Special Marriage Act" are allowed to participate in the proceedings. He also submitted that Section 21 of the Special Marriage Act has a direct bearing on personal laws.

During his compelling presentation, Advocate J Sai Deepak delved into the broader implications of the petitions that were before the court. He highlighted that the petitions sought to challenge the prevailing heteronormative attitudes embedded in legislations, extending beyond the scope of the Special Marriage Act. Sai Deepak emphasized that the court's consideration was not limited to religion-specific laws but rather focused on the Special Marriage Act, thereby warranting the participation of the entire society in the ongoing debate.

Drawing a distinction between religion-specific laws and the Special Marriage Act, Sai Deepak emphasized the importance of inclusivity in the proceedings. He contended that for religion-specific laws, there exists a specific group with a legitimate right to argue their case. However, when it comes to the Special Marriage Act, it cannot be limited to only those individuals who align with the act's values. He advocated for a broader and more inclusive representation in the discussions surrounding the act.

Furthermore, Sai Deepak brought attention to Section 21 of the Special Marriage Act, underscoring its direct influence on personal laws. By highlighting this connection, he shed light on the broader impact and relevance of the act, which necessitated the engagement of society as a whole in the ongoing discourse. This ensured that perspectives from various segments of society were taken into account when considering the potential changes in the paradigm of marriage laws.

Through these arguments, Sai Deepak emphasized the need for a comprehensive and inclusive approach to the interpretation and evaluation of the Special Marriage Act, recognizing its impact on personal laws and the wider societal context.

Judicial Paternalism

He presented a noteworthy argument, citing his reference to the Manual for Parliamentary Procedure of 2019, published by the Ministry of Parliamentary Affairs. With conviction, he highlighted the existence of Chapter 9 within the manual, which specifically addresses the intricacies of legislative procedures and the functioning of the legislature. Drawing attention to this comprehensive set of guidelines, he emphasized the meticulous process involved in considering a legislative proposal and initiating legislative action.

Sai Deepak underscored the significance of the manual's detailed clauses, revealing that nearly 30 clauses specifically outline the procedural steps for the consideration of a legislative proposal. These clauses serve as a roadmap for the legislative process, ensuring that due diligence is followed and that the necessary procedures are adhered to from the outset. By referring to specific provisions within the manual, Sai Deepak emphasized the importance of following a systematic approach and setting the legislative process into motion in a well-defined manner.

To support his argument, Sai Deepak even read excerpts from the manual, further bolstering his position. By doing so, he sought to demonstrate that the judicial mechanism should not serve as a substitute for the established legislative procedures. He asserted that particularly in matters as consequential as the one at hand, it is imperative to respect and adhere to the well-established procedures outlined in the manual. This approach not only ensures the integrity of the legislative process but also upholds the principles of democracy and the separation of powers.

By referencing the Manual for Parliamentary Procedure of 2019, Sai Deepak presented a compelling case for the adherence to proper legislative procedures. His aim was to highlight that the judiciary should not bypass or replace these established procedures but rather work in harmony with them. This perspective emphasizes the importance of maintaining the integrity and effectiveness of the legislative process, especially when dealing with significant and complex issues that impact society as a whole.

"If I may say so and I say it with the deepest of respect and greatest humility that I command at this point, the judicial mechanism cannot be a substitute to any of these steps. Especially when it comes to such a serious issue."

He said that as per Hindu Law, the purpose of marriage, or the object of 'dampathya' is procreation. He answered the questions posed by the Bench earlier about a single parent, a homosexual single parent etc by saying, "Public morality is decided by the normative attitudes. The norms is decide by the mainstream, this is not a majoritarian argument, this is a statement of fact in democracy."

"When normative attitudes are sought to be revisited, to say that those to constitute a norm don’t get to participate in this discussion because that particular process or dance of democracy is sought to be circumvented by using the instrumentality of the Court to secure a certain outcome, I am 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 it then effectively replaces the social ....(inaudible) with, I am sorry to use the words, judicial paternalism. That can't happen."

During his argument, Advocate J Sai Deepak expressed his concerns regarding the revisitation of judgments in sensitive issues, emphasizing that clarification alone is not an adequate substitute. He emphasized that a judgment should not be treated as a statute, as it lacks the precision and applicability of legislative language. He further argued that the principles of statutory interpretation do not necessarily apply to judicial judgments, leading to greater uncertainty in their interpretation and implementation.

Sai Deepak specifically highlighted the NALSA judgment, acknowledging both its positive aspects and drawbacks. He emphasized the importance of contextualizing the judgment, as it primarily addressed the recognition of a third gender. By extrapolating the findings of the NALSA judgment to the realm of marital transactions, Sai Deepak argued that it would amount to misinterpreting the judgment's intended scope and purpose.

In raising concerns about the limitations of revisiting judgments, Sai Deepak underscored the potential risks of misinterpretation and misapplication. He advocated for a nuanced approach to the interpretation of judicial judgments, recognizing that their context, specific scope, and underlying principles must be carefully considered. By cautioning against reading judgments for what they are not, he emphasized the importance of maintaining clarity and consistency in the legal framework.

Sai Deepak's argument shed light on the complexities surrounding the interpretation and revisitation of judgments, particularly in sensitive matters. He urged the court to exercise caution and avoid extrapolating judgments beyond their intended boundaries. By doing so, he aimed to ensure that the legal system remains grounded in clear principles and maintains a balance between legal certainty and necessary adaptations in response to societal changes. He said that to extrapolate the findings to a marital transaction is to "read a judgment for what it is not".

Justice SR Bhat then remarked, "I think we are aware of how to read these judgments. We don’t need to be taught. We understand that there are contexts, whether there are analogies or not are up to us".

Sai Deepak continued by arguing that the judgment does not help the petitioners' position and points to problems with respect to judicial revisitation of some of these aspects. "Narrow language being expanded through judicial interpretation contrary to legislative intent and history is to rewrite legislative history and judicial reinscription which is retrospective in nature may not be permissible", he submitted.

He submitted that Yogyakarta Principles specifically leaves it to countries to decide if they wish to have recognition with respect to the marital union. He said that there is no binding international instrument on the subject.

"I am not arguing that it should not be, I am simply saying, if the door of judicial intervention is opened for one case, even though the cause may be worthy, what would it do for the future, because, ultimately it's not just the question of one matter it is a question of the future as well", he said, adding that the issue of separation of power and societal participation go beyond this matter.

Concluding his arguments, he submitted that there are other important issues to be dealt with. "Having engaged with certain transgender activists and also having worked with them, I know for a fact their biggest problems is trafficking, them being pushed into prostitution, not having legitimate livelihood". He said that he is not dismissing anybody's concerns with respect to their priority, but that these issues need to be addressed before we get into the next step.