Centre Calls Same-Sex Marriage ‘Urban-Elitist,’ A Legislative Not Judicial Matter

New Delhi: 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 submitted this in the Supreme Court, questioning the maintainability of a clutch of petitions demanding legal validation for same-sex marriages in India.

What else did the Centre submit in the apex court?

• 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 a far wider spectrum of society.
• The choice not to recognise same-sex marriage is a facet of the legislative policy. 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 the heterogeneous 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 fundamental 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.

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.

At least 15 petitions are pending in the Supreme Court demanding legal recognition for same-sex marriages. The petitioners including same-sex couples and rights 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.