Centre Urges Supreme Court To Make States Part Of Same-Sex Marriage Hearings

The Centre today urged the Supreme Court that all states and Union Territories be made parties to the proceedings on the pleas seeking legal validation for same-sex marriages, saying any decision on the issue without obtaining their view would render the present "adversarial exercise incomplete and truncated".

In a fresh affidavit filed in the top court, the Centre said it had issued a letter on April 18 to all the states inviting comments and views on the "seminal issue" raised in these petitions.

It said the framers of the Constitution have specifically provided for a separate entry in the Concurrent List, which is a part of the Seventh Schedule of the Constitution conferring a constitutional function of legislating with respect to the institution of "marriage", the requisite conditions for a valid marriage, regulations of such institutions like making provisions for divorce, alimony etc.

Referring to entry 5 of the Concurrent List in the Seventh Schedule, the affidavit said, "It is submitted that every component of entry 5 above is intrinsically interrelated and any change in any one will necessarily have an inevitable cascading effect on other."

"The present matter and issue delineated by this court, even when limited to the Special Marriage Act, 1954, entails the purported judicial creation of a social institution called 'marriage' of a different kind than contemplated under the existing law," it said.

Solicitor General Tushar Mehta, appearing for the Centre, requested a five-judge Constitution bench headed by Chief Justice DY Chandrachud that states be made parties to the proceedings.

The bench, also comprising Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha, commenced hearing for the second day on the batch of pleas seeking legal validation for same-sex marriages.

In its affidavit, the Centre has said it is clear that rights of the states, especially the right to the legislate on the subject, will be affected by any decision on the issue.

"It is submitted that further, various states have already legislated on the subject through delegated legislations, therefore making them a necessary and proper party to be heard in the present case," it said.

The Centre said in such a matter, wherein legislative rights of the states under the Seventh Schedule and the rights of the residents of the states are clearly in question, it was the "bounden duty" of the petitioners to make all of them a party to this litigation.

"It is submitted that despite the same, the states were not made a party to the present batch of petition unlike other occasions wherein for decisions on questions of seminal constitutional importance, especially wherein legislative powers of the states are under the scanner of the court, this court has issued notices to the states and taken their respective stands on record," it said.

The affidavit further said, "It is submitted that any decision on the present issues without making states a party, without specifically obtaining their opinion on the present issue, would render the present adversarial exercise incomplete and truncated."

It said a prayer was made before the top court to make all states a party and invite their respective stands on the issue during the hearing on April 18.

"It is submitted that despite the said constitutional, jurisprudentially and logically fair request being made, this court is not pleased to rule upon the same," it said.

"It is submitted that in light of the above, the Union of India, reiterates its request to join all states and Union Territories as a party to the present case, invite the views of the various states on the present issue, which clearly falls within their legislative domain and only thereafter, proceed to decide the question before the court," the affidavit said.

It said the Centre, in the absence of notice to the states and Union Territories on this issue, has started the exercise of consultation with the states to ascertain their views on this.

"It is submitted that the said issue goes to the root of the present matter and has far reaching implications. It is, therefore, humbly requested that all states and Union Territories be made a party to the present proceedings and their respective stance be taken on record and in the alternative, allow the Union of India, to finish the consultative process with the states, obtains their views/apprehensions, compile the same and place it on record before this court, and only thereafter adjudicate on the present issue," the Centre said.

It has also attached with the affidavit a copy of the April 18 letter written by the secretary of the department of legal affairs, Ministry of Law and Justice, to the chief secretary of all the states on the issue.

The letter said the subject of marriage pertains to entry 5 in the concurrent list of the Constitution.

"Moreover, any decision on this matter requires an assessment of the ramifications on existing social customs, practices, values, norms, mores, state Rules and such like that may be prevalent in different sections of the society," it said.

The letter said it is important that a "composite and cohesive view" is presented before the court incorporating the views of the state governments for effective adjudication.

It said the Centre has requested the top court to implead all states as parties in the case and the prayer is under consideration.

"In the event of the court not issuing notice to the state governments, it will be expedient that you communicate your views to us for appropriate submissions by the Union of India before the court," the letter said.

"You may note that the matter is ongoing in the court and arguments of the petitioners have commenced. Accordingly, I would request you to offer your views within a period of ten days so that the standpoint of the Union and state governments are represented properly without delay," it said.

The hearing and the outcome will have significant ramifications for the country where common people and political parties hold divergent views on the subject.

The Supreme Court had on November 25 last year sought the Centre's response to separate pleas moved by two gay couples seeking enforcement of their right to marry and a direction to the authorities concerned to register their marriages under the Special Marriage Act.
 

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