New Delhi – The Centre has informed the Supreme Court that judicial determination cannot be used to create a new social institution.
The Union government has argued before the Supreme Court that “creation of a new social institution” is outside the purview of judicial determination and that courts cannot rewrite an entire branch of law by recognising the right of same-sex marriage. The government was challenging the viability of a number of petitions that sought legal recognition for same-sex marriages in India.
In a new application that was submitted on Sunday, the Centre said that the court’s petitions reflect “urban elitist views for the purpose of social acceptance” and that the proper legislature does not necessarily reflect the opinions and voices of a much wider range of society.
The government argued that the decision to not recognise same-sex marriage was part of the legislative policy and that it was not a matter for the court to decide because of the clear legislative policy and the compelling state interest supporting the heteronormative institution of marriage, which can only occur between a biological man and a biological woman.
“If the court were to rule in favour of same-sex marriage, it would amount to a virtual judicial rewriting of a whole body of law. The court must not issue such sweeping orders. The appropriate legislature is the proper authority for the same.Given the fundamentally social origins of these rules, any change would need to originate from the ground up and through legislation in order to be legal. “A change cannot be compelled by judicial fiat, and the legislature itself is the best judge of the pace of change,” the application argued.
On April 18, the case will be heard by a constitution bench made up of Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli. The matter was submitted to a constitution bench on March 13.
At least 15 petitions requesting legal recognition of same-sex marriages are currently before the court. The petitioners, who included same-sex couples and rights advocates, contested the constitutionality of relevant portions of the Hindu Marriage Act, Foreign Marriage Act, Special Marriage Act, and other marriage regulations on the grounds that they forbade same-sex couples from getting married. Alternately, the petitions have asked the supreme court to interpret these clauses wide in order to recognise same-sex unions.
The Centre made note of the petitioners’ request for judicial establishment of a social institution called “marriage” of a different kind than that which is permitted by the current law in its application asking the court to consider maintainability of the petitions as a preliminary issue.
“The issue of same-sex marriage’s legal recognition and parity with the notion of marriage as an exclusively heterogeneous institution, governed by the current legal system, and having a sacred status attached to it in every country religion seriously affects the interests of every citizen. It raises important considerations about whether prayers can be offered as part of the judicial adjudication process in cases of this sort, which inevitably require the development of new social institutions.
The government emphasised that recognising human relationships like a “marriage” is primarily a legislative task, saying: “The courts cannot either create or recognise any institution called “marriage” either through a judicial interpretation or striking down/reading down the existing legislative framework for the marriages, which undoubtedly occupies the field.”
The petitions “merely reflect urban elitist views,” the Centre claims, whereas the competent legislature will have to take into account broader viewpoints and voices from all rural, semi-rural, and urban population, as well as viewpoints from various religious denominations, while keeping in mind the personal laws and customs governing the area of marriage.
Any law that recognises people’s connections and grants them legal sanctity will basically codify society values, such as the family concept’s valued common values, into standards for the law.
“This is the only constitutional strategy allowed by the Constitution that acknowledges any socio-legal connection as an entity with legal standing. The only constitutional body that is aware of the aforementioned factors is the competent legislature. The petitions don’t represent the opinions of the entire country, it continued.
According to the argument, the right to personal autonomy does not include a right to the recognition of same-sex marriage, and that too through judicial adjudication. It was further stated that marriage is a concept that must be defined, recognised, and regulated by the appropriate legislature, which serves as the elected representatives of the people, and that the decision to not recognise same-sex marriage is merely one aspect of legislative policy.
According to the Centre, decisions about these intimate relationships shouldn’t be made without taking into account the opinions of society as a whole, which can only be done by the appropriate legislature.
The well-established concepts of “separation of powers,” which are believed to be a component of the Constitution’s fundamental construction, would be violated by any intrusion on the legislative powers that are exclusively reserved for the elected representatives. The government emphasised that the current definition of marriage is a clear, conscious, and deliberate legislative choice based on public consensus on the subject, adding that any such divergence from the notion of separation of powers would be therefore, opposed to constitutional morals.
The Centre requested that the petitions be dismissed, arguing that the decisions should be left to the wisdom of the elected officials who alone are the democratically legitimate and viable source through which any shift in perception or acceptance of a new social institution can occur.
The Centre’s plea comes in response to a thorough rebuttal affidavit it submitted in March in which it claimed that the legal recognition of same-sex marriage would wreak “complete havoc” with the delicate balance of personal laws in the nation and in widely held societal norms.
The Centre stated that it is “impermissible” for the top court to change the entire legislative policy of the nation because it is firmly rooted in religious and societal norms and that Indian law only recognises marriage as a bond between a biological man and a biological woman. It had stated in March that such an exercise would result in “irreconcilable violence” to several statutes that define “husband” as a biological man and “wife” as a biological woman.
A formal recognition of such human relationships has many legal and other consequences for couples, as well as their children, under various legislative enactments, covering issues like divorce, maintenance, succession, adoption, and inheritance, according to its March affidavit. As such, marriage cannot be viewed as merely a concept within the domain of an individual’s privacy.
