Two days ahead of the scheduled hearing of the marriage equality petitions, the Union government on Sunday, April 16, filed an affidavit in the Supreme Court stating that the demand for same-sex marriage is an "urban elitist view." The affidavit also said that recognising the right to same-sex marriage would mean the judicial rewriting of an entire branch of law, which should be done only by the competent legislature. A five-judge Constitution bench headed by Chief Justice of India DY Chandrachud is set to hear the batch of petitions on Tuesday.
Stating that the prayers made in the petitions would “entail the judicial creation of a social institution called ‘marriage’ of a different kind than contemplated under the existing law,” and that it would have far reaching implications, the Union government sought that a preliminary hearing be conducted before going into detailed arguments. The Union government also said that the question concerning legal recognition of same-sex marriage and equating it “with the existing concept of marriage,” which, according to it, has a “sanctity” attached to it in every religion, affects the interests of citizens.
The batch of petitions seeking marriage equality asks for two broad reliefs — recognition of the right to marriage for same-sex couples, transgender persons, queer persons; and challenging the Constitutional validity of the provisions of the Hindu Marriage Act, Special Marriage Act, Foreign Marriage Act, etc., which restrict marriage to that between a biological man and a biological woman.
The Union government said that though India was a country of several religions, castes, and beliefs, the personal laws and customs recognise only marriage amongst heterosexual persons and submitted that the social acceptance and adherence to “societal ethos, common values, shared beliefs across religions” in case of recognition of the socio-legal institution of marriage should not be confused with majoritarianism.
The Union government also submitted that the petitioners did not represent the view of the entire nation, but that they were “mere urban elitist views for the purpose of social acceptance.” The affidavit also said that the legislature should take a broad view and the voices of rural, semi-rural, urban populations, and all religious denominations, as well as the personal laws and customs governing the field of marriage must be taken into account while deciding on the matter.
Recalling the National Legal Services Authority vs Union of India (NALSA) case (that affirmed the rights of trans persons) and Navtej Singh Johar vs Union of India (that decriminalised consensual same-sex relationships), the Union government said that the Constitutional concepts of autonomy of personal choice, freedom of sexual orientation, and choice of sexual orientation as a part of individual’s dignity were recognised.
It also said that the Transgender Persons (Protection of Rights) Act, 2019, was passed to respect and protect the fundamental rights of choice and dignity of individuals. Pointing out that the Act “categorically recognizes, respects, codifies, and protects all the fundamental rights recognized” in the above-mentioned judgements, the Union government said that marriage was an exception in the Act as it “is not a right except in heterosexual couples.”
Contending that the court, “as a custodian of fundamental rights of citizens,” has already recognized the right of choosing one’s sexual orientation as well as right to privacy, which are fully protected under the Transgender Persons (Protection of Rights) Act, 2019, the affidavit said, “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.”
It submitted that the recognition of marriage is a legislative function and courts “cannot create or recognize any institution called ‘marriage,’ either by way of a judicial interpretation or by striking down/reading down the existing legislative framework for marriage.” Stating that personal laws and the laws recognizing personal relationships are essentially social norms codified into law by legislatures, the affidavit said that questions of personal relationships should not be decided without accounting for the views of the society at large. The question of what marriage ought to be is to be addressed by Parliament, the Union government contended, adding that it is “not a dispute fit for the Court to adjudicate upon.”
Further, the government also stated that the creation or recognition of a new social institution cannot be claimed as a matter of right/choice, much less a fundamental right, and that the right to personal autonomy does not include a right for the recognition of same-sex marriage. It added that the ripple effects of the decisions made in the case are difficult to anticipate and that the Court must refrain from passing such “omnibus” orders.
The Union government prayed that the court decide on two preliminary questions before hearing detailed arguments. It sought that an order be passed based on the two questions and the batch of petitions be dismissed on the grounds of maintainability. The questions posed in the affidavit are:
> Lawmaking power is only available with the competent legislature under Article 246 (division of power) of the Constitution of India and Entry 5 (deals with marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; etc.) of the Concurrent List. In such a case, can a constitutional court legislate to create a separate socio-legal institution of marriage between persons “not contemplated by the existing legislation” and/or can the court interpret the existing legislation in a way that “destroys the fundamental fabric of the existing legislations” that state that marriage is between a biological man and a biological woman?
> “While creating an institution like marriage, which is a socio-legal concept, is it not constitutionally imperative to leave the question to the appropriate legislature that represents the democratic mandate and which would decide the issues based on societal ethos, societal values, and larger societal acceptability in the Indian context of understanding of marriage as an institution?”
The affidavit came on a batch of petitions challenging certain provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws as unconstitutional on the ground that they deny marriage equality to LGBTQIA+ community. Alternatively, the petitions asked for the provisions to be read broadly so as to include same-sex marriage.