A Constitution bench of the Supreme Court is set to hear a clutch of petitions on the issue tomorrow.
Calling marriage an "exclusively heterogenous institution", the Centre today again opposed granting legal sanction to same-sex marriage, and said the question of considering it equal to the existing concept of marriage "seriously affects the interests of every citizen". A court order recognising same-sex marriages would mean a virtual judicial rewriting of an entire branch of law, the government argued, adding that the Court must refrain from passing such "omnibus orders".
It's not discrimination to grant recognition to the "heterogenous institution of marriage alone" to the exclusion of same-sex marriage, the government argued, saying that this is because conventional and universally accepted socio-legal relationships like marriages across all religions, are "deeply rooted in the Indian social context and indeed is considered a sacrament in all branches of Hindu law. Even in Islam, though it is a contract, it is a sacred contract and a valid marriage is only between a biological male and a biological woman".
Calling the petitions "mere urban elitist views for the purpose of social acceptance," the Centre in its submission to the top court said that the Parliament will have to take into account "broader views and voices of all rural, semi-rural and urban populations, views of religious denominations keeping in mind personal laws as well, and customs governing the field of marriage together with its inevitable cascading effects on several other statutes".
A five-judge Constitution bench of the Supreme Court comprising Chief Justice of India DY Chandrachud, and Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, is set to hear a clutch of petitions seeking legal recognition for same-sex marriages on Tuesday.
The matter "raises critical issues as to whether questions of such a nature, which necessarily entails the creation of a new social institution, can be prayed for as a part of the process of judicial adjudication", it contended.
The Centre pointed out that further creation of rights, recognition of relationships, and giving legal sanctity to such relationships can be done only by the legislature, and not by the judiciary.
"It's purely a matter of legislative policy under Entry 5 of List III of Schedule VII of the Constitution, which ought to be determined by the appropriate Legislature only," the Centre emphasised.
It further argued that the creation or recognition of a new social institution altogether "cannot be claimed as a matter of right/choice, much less a fundamental right". The right to personal autonomy does not include a right for the recognition of same-sex marriage and that too by way of judicial adjudication, the Centre said.
Which social relationships will be legally recognised will be decided by the representatives of the people, the submission stated, adding that they are the "appropriate democratic institution" keeping in mind "the sanctity attached to the institution of marriage in the country, the societal ethos, cherished values in the concept of family, and other such relevant considerations".
"The petitions which merely reflect urban elitist views cannot be compared with the appropriate legislature, which reflects the views and voices of a far wider spectrum and expands across the country," it said.
According to the Constitution, the courts do not replace the policy of the legislature with its own. The exercise should only be "what is the law" and not "what the law should have been", it added.