NEW DELHI: The Supreme Court on Monday agreed to list on Tuesday the government’s fresh application which raises the question of maintainability on various petitions seeking legal recognition of same-sex marriage.
Solicitor General Tushar Mehta mentioned before a bench headed by Chief Justice of India, D Y Chandrachud, that the Centre has filed something on a preliminary issue. The court said that it will list the Centre’s application along with other petitions that will be heard by Constitution bench on Tuesday.
The state of Gujarat and Madhya Pradesh also mentioned their intervening application. Various petitions seeking legal recognition of same-sex marriage will be heard by a five-judge Constitution bench of the Supreme Court on April 18.
The Centre has informed the Supreme Court that the petitions seeking legal recognition of same-sex marriage merely reflect urban elitist views and cannot be compared with the appropriate legislature which reflects the views and voices of a far wider spectrum and expands across the country.
The Centre’s submission came on a fresh application before the Supreme Court on the issue pertaining to legal recognition of same-sex marriage and raised questions on the maintainability of the petitions as a preliminary issue saying that the prayers made will entail the judicial creation of a social institution called “marriage” of a different kind than contemplated under the existing law.
The Centre informed the apex court that any further creation of rights, recognition of relationships and giving legal sanctity to such relationships can be done only by the competent legislature and not by judicial adjudication. The Centre said that the petitions seeking legal recognition of the same-sex marriage issue has far-reaching implications.
The Centre informed the Supreme Court that 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 entail the creation of a new social institution, can be prayed for as a part of the process of judicial adjudication, the Centre informed the Supreme Court.
The Centre further informed the court that the petitions seeking legal recognition of same-sex marriage merely reflect urban elitist views and cannot be compared with the appropriate legislature which reflects the views and voices of a far wider spectrum and expands across the country.
The government stated that the institution of marriage is a recognition of a social union of two people which will be conferred with a sanctity attached to the institution of marriage. It submitted that any law recognizing persons’ relationship and conferring legal sanctity thereupon, essentially involves a codification of societal ethos, cherished common values in the concept of family across religions in society and such other relevant factors, into legal norms.
The Centre said that the petitioners seeking recognition of same-sex marriage do not represent the view of the entire population of the nation. “This would not, in fact, and cannot, in law, mean a majoritarian approach. This is the only constitutional approach permissible under the Constitution while recognizing 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,” the Centre further said.
The Union government submitted that the question as to which social relationships will be recognised by the appropriate legislature is part of the legislative policy to be decided by the representatives of the people as the representative of the people are the appropriate democratic institution to under Article 246, keeping in mind, among other things, the sanctity attached to the institution of marriage in the country, societal ethos, cherished values in the concept of family and other such relevant considerations.
The Centre further added there is no denying that the Constitution provides for the power of judicial review. Still, judicial review should not become judicial legislation and the Personal Laws in India essentially represents a social concurrence by which certain norms have been crystallised into law.
The government informed the apex court that judicial intervention to create this new institution of same-sex marriage risks upsetting this balance apart from being without jurisdiction. The Centre further informed that same-sex marriage issues are left for being decided by the competent legislature where social, psychological, religious and other impacts on society can be debated.
It would also have to be seen if such recognition or creation will diminish the special status enjoyed by heterogeneous institutions of marriage across the country and this will ensure that wide-ranging ramifications of recognizing such sacred relationships are debated from every angle and legitimate state interest can be considered by the Legislature, the Centre further said. It submitted that though India is a country of several divergent religions, castes, sub-castes and schools of religions, the personal laws and customs all recognise only marriage amongst heterosexual persons.
The institution of marriage is necessarily a social concept and a sanctity to the said institution is attached under the respective governing laws and customs as it is given sanctity by law on the basis of social acceptance. 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” is not be confused with majoritarianism, the Centre noted. (ANI)