Same-sex marriage case in the Supreme Court: Here is what the Centre said

In the case related to the legal recognition of same-sex marriage, the Centre primarily argued that the issue needed to be decided by the Legislature and not by judicial review

On Monday, the Centre submitted a fresh application before the Supreme Court on the questions pertaining to the legal recognition of same-sex marriage. In its submission, the Centre raised questions on the maintainability of the petitions as a preliminary issue, saying that the prayers would entail the judicial creation of a new institution.

A five-judge constitution bench of the Supreme Court will hear various petitions seeking legal recognition of same-sex marriage on April 18. Here is what the Centre's submission to the apex court argues:

Legal recognition of same-sex marriage reflects urban elitist views

In its submission to the apex court, the Centre informed Supreme Court that the petitions seeking legal recognition of same-sex marriage merely reflect urban elitist views, which cannot be compared to the appropriate Legislature that represents the views and voices of a far wider spectrum and expands across the country.

"This would not in fact and cannot, in law, mean a majoritarian approach. 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," Centre said.

Recognition of same-sex marriage can be given only through legislation and not via the judicial route

The Centre informed the Supreme Court that any further creation of rights, recognition of relationships and giving legal sanctity to such relationships could be done only by the competent Legislature and not by judicial adjudication.

Centre stressed that the petition seeking legal recognition of the same-sex marriage has far-reaching implications.

Marriage is an exclusively heterogenous institution

The Centre has said that marriage currently exists as a heterogenous institution governed by a legal regime and has sanctity attached to it from every religion and thus affects every citizen in the country. Centre argues that judicial adjudication cannot answer the question of creating a new social institution like that of same-sex marriage.

The Centre further added that any law recognising persons' relationship and conferring legal sanctity to it essentially involves a codification of societal ethos, cherished common values in the concept of family across religions in society and other relevant factors into legal norms.

It added that recognition of same-sex marriage would dimmish the special status enjoyed by heterogeneous institutions of marriage across the country.

The Centre also emphasised the personal laws and customs of all religions, castes, and sub-castes recognise only marriage amongst heterosexual persons.

Judicial review cannot be interpreted to be judicial legislation

Centre submitted that the constitutional provision for the power of judicial review should not become judicial legislation. It added that the personal laws in India essentially represent a social concurrence by which certain norms have been crystallised into law. And judicial intervention to recognise same-sex marriage risks upsetting this balance.

The Legislature needs to debate the social, psychological, and religious impacts

The Centre asserted in its submission that under Article 246, the question as to which social relationships will be recognised is part of the legislative policy and can be decided by the people's representatives.

It further informed the court that the issues of same-sex marriage are left to be decided by the competent Legislature, where social, psychological, religious and other impacts on society can be debated.

Marriage is a social concept

The Centre submitted that the institution of marriage is necessarily a social concept based on social acceptance.

It argued that a marriage between a heterosexual couple enjoys sanctity under the respective governing laws and customs as it is given sanctity by law based on social acceptance. And social acceptance and adherence to societal ethos, common values, and shared beliefs across religions, in case of recognition of the "socio-legal institution of marriage", should not be confused with majoritarianism, it further added. 



-With agency input