Explained: Centre’s arguments in SC against same-sex marriages

The Centre on Monday (April 17) reiterated its opposition to same-sex marriages and urged the Supreme Court to refrain from giving legal sanction to the same, asserting that a judicial order recognising such unions would mean a creation of an entire branch of law.

Asserting that marriage is an “exclusively heterogenous institution,” the Centre urged the court to allow lawmakers to take a call based on majoritarian beliefs.

The Centre’s affidavit comes a day before a five-judge constitution is slated to hear a batch of petitions seeking legal recognition of same-sex marriage.

Also read: Centre opposes same-sex marriage in SC, says it reflects urban elitist views

Here’s a look at the Centre’s arguments:

‘Legal sanctity can be given by competent legislature, not courts’

The Centre in its affidavit asserted that under Article 246 of the Constitution, only the legislature has the power to recognise, provide legal sanctity and regulate the socio-legal institution of marriage.

While urging the apex court to refrain from providing legal validation to same-sex marriages, the Centre said any such sanction would mean “virtual judicial rewriting of an entire branch of law.”

‘Urban elite concept’

The Centre argued that the petitions seeking legal stamp to homosexual marriages only reflect a “mere urban elitist views for the purpose of social acceptance” and cannot be equated with the views of the vast majority of India.

Also read: Same-sex marriage: 5-judge Constitution Bench to hear matter from April 18

“This would not in fact and cannot, in law, mean a majoritarian approach. This is the only constitutional approach permissible under the Constitution while recognising any socio-legal relationship as an institution with sanction under law,” the affidavit read.

“The competent legislature is the only constitutional organ which is aware of the above-referred considerations. The petitioners do not represent the view of the entire population of the nation,” the Centre said.

It said the legislature, on the other hand, will have to factor in a broader spectrum of views including “voices of all rural, semi-rural and urban populations, views of religious denominations keeping in mind personal las as well, and customs governing the field of marriage together with its inevitable cascading effects on several other statues.”

‘Marriage a heterogenous institution’

The Centre said popular will recognises marriage as a “heterogenous institution” that involves the union of “a biological male and biological woman” and is considered sacred in all religions practised in India.

It argues that giving parity to same-sex marriage with “universally accepted socio-legal” marriages which “are deeply rooted in Indian social context” would amount to comparing two “non-comparable classes” and diminish the special status enjoyed by the heterogenous forms of marriage.

Also read: Explained: Why Centre is okay with gay rights but not same-sex marriages

It also says that creating or recognising a new social institution altogether “cannot be claimed as a matter of right/choice, much less a fundamental right.”

‘Marriage a social concept’

The Centre in its affidavit said marriage is mostly a social concept which is given sanctity by law based on its acceptance by respective social customs.

It argues that it therefore rests on representatives of people to decide on legally accepting a particular type of social relationship.

“The institution of marriage is necessarily a social concept and a sanctity to the said institution is attached under the respective governing laws and customs as it is given sanctity by law on the basis of social acceptance. It is submitted that social acceptance and adherence to societal ethos, common values, shared beliefs across religions, in case of recognition of ‘socio-legal institutions’ is not to be confused with majoritarianism,” the Centre said.

‘Marriage not limited to a particular space’

The Centre said that as a marriage cannot be confined to a private sphere and has to be recognised across jurisdictions, it is the government’s responsibility to ensure that it gets acceptance by society to get legal sanction.

Also read: Centre opposes same-sex marriages in SC citing ‘Indian family unit concept’

“The regulation of marriage is a very much an issue of acceptance by the society and as such ought to be debated only by the competent legislature, being a body, which is the repository of democratic representation and reflects the will of the people. It is submitted that marriage, thus becomes the condition precedent for the state’s very existence. Reading of impugned laws makes clear that the legislative intent was to recognise marriage as being the union of one man and one woman only…” the Centre said.