Centre opposes same-sex marriage in Supreme Court

The Centre has told the Supreme Court that creation of a new social institution is beyond the scope of judicial determination

Courts cannot rewrite an entire branch of law by recognising the right of same-sex marriage because “creation of a new social institution” is beyond the scope of judicial determination, the Union government has submitted in the Supreme Court, questioning the maintainability of a clutch of petitions that has demanded legal validation for same-sex marriages in India.

Submitting a fresh application on Sunday, the Centre maintained that the petitions before the court reflect “urban elitist views for the purpose of social acceptance” which cannot be equated with the appropriate legislature mirroring the views and voices of far wider spectrum of society.

The choice not to recognise same-sex marriage is a facet of the legislative policy, maintained the government, adding it is not a dispute fit for the court to adjudicate upon in the wake of a clear legislative policy and the compelling state interest underlying heterogenous institution of marriage, which can take place only between a biological man and a biological woman.

“A decision by the court in recognising the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law. The court must refrain from passing such omnibus orders. Proper authority for the same is appropriate legislature…Given the fundamentally social origin of these laws, any change in order to be legitimate would have to come from the bottom up and through legislation…a change cannot be compelled by judicial fiat and the best judge of the pace of change is the legislature itself,” stated the application.

A constitution bench, comprising Chief Justice of India (CJI) Dhananjaya Y Chandrachud, and justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli, will commence the hearing of the matter on April 18. On March 13, the issue was referred to a constitution bench.

The court is seized of a clutch of at least 15 petitions demanding legal recognition for same-sex marriages. The petitioners, which included same-sex couples and right activists, have challenged the constitutionality of pertinent provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws on the ground that they deny same sex couples the right to marry. Alternatively, the petitions have requested the top court to read these provisions broadly so as to include same-sex marriage.

In its application requesting the court to decide maintainability of the petitions as a preliminary issue, the Centre pointed out that the petitioners seek judicial creation of a social institution called “marriage” of a different kind than contemplated under the existing law.

“The question concerning legal recognition of same sex marriage and its parity with the existing concept of marriage, as an exclusively heterogenous institution, which is governed by the existing legal regime and has a sanctity attached to it in every religion in the country, seriously affects the interests of every citizen. It raises critical issues as to whether questions of such a nature, which necessarily entails the creation of new social institution, can be prayed for as a part of the process of judicial adjudication,” said the plea.

Emphasising that recognition of human relations like that of a ‘marriage’ is essentially a legislative function, the government said: “The courts cannot either create or recognise any institution called “marriage” either by way of a judicial interpretation or striking down/reading down the existing legislative framework for the marriages, which undoubtedly occupies the field.”

According to the Centre, the petitions “merely reflect urban elitist views” whereas the competent legislature will have to take into account broader views and voice of all rural, semi-rural and urban population, besides the views of religious denominations keeping in mind the personal laws and the customs governing the field of marriage.

Any law recognising persons’ relationships and conferring legal sanctity on them will essentially involve a codification of societal ethos, cherished common values in the concept of family and such other relevant factors, into legal norms.

“This is the only constitutional approach permissible under the Constitution while recognising any socio-legal relationship as an institution with sanction under the law. The competent legislature is the only constitutional organ which is aware of the above referred considerations. The petitioners do not represent the view of the entire population of the nation,” it added.

The right to personal autonomy does not include a right for the recognition of same sex marriage and that too by way of judicial adjudication, said the plea, adding marriage is a concept within the remit of the appropriate legislature, as the elected representatives of the people, to define, recognise and regulate; and the choice not to recognise same-sex marriage is simply a facet of the legislative policy.

According to the Centre, questions of such personal relationships ought not to be decided without accounting for the views of society at large that can be done only by the competent legislature.

“Any encroachment on the legislative powers solely reserved for the elected representatives would be against the well-settled principles of ‘separation of powers’ which is held to be a part of the basic structure of the Constitution. Any such deviation from the concept of separation of powers would be thus, contrary to constitutional morality,” said the government, stressing that the current definition of marriage is a clear, conscious and deliberate legislative choice based on societal consensus on the issue.

Seeking dismissal of the petitions, the Centre said that the issues should be left to the wisdom of the elected representatives of the people who alone shall be the democratically viable and legitimate source through which any change in the understanding or the recognition of the any new social institution can take place.

The Centre application follows a detailed counter affidavit filed by it in March when it said that legal validation of same-sex marital unions will cause “complete havoc” with the delicate balance of personal laws in the country and in accepted societal values.

Pointing out that the legislative policy in India recognises marriage as a bond only between a biological man and a biological woman, the Centre asserted that it is “impermissible” for the apex court to change the entire legislative policy of the country that is deeply embedded in religious and societal norms. Such an exercise would further trigger an “irreconcilable violence” to a large number of statutes defining ‘husband’ as a biological man and ‘wife’ as a biological woman, it had said in March.

Its March affidavit added that a marriage cannot be viewed as merely a concept within the domain of privacy of an individual when a formal recognition of such human relationships has many statutory and other consequences on couples, as well as their children, under various legislative enactments, covering issues such as divorce, maintenance, succession, adoption and inheritance.