Same-Sex Marriage| Centre Files Affidavit Seeking Impleadment Of States And UTs, Says Issue Falls Within Their Legislative Domain
The Centre has filed a new affidavit in the batch of cases seeking legalisation of same-sex marriage, that is currently being heard by the Constitution Bench of the Supreme Court. The Centre has sought that either all the States and Union Territories be made parties to the proceedings or the Centre be permitted to finish the consultative process with the States and obtains their views and place them on record.
The Centre has said that any departure made on the issue of legalizing same sex marriage without consulting the States and Union Territories, and without making them a party “would render the present adversarial exercise incomplete and truncated”.
The Constitution Bench of Chief Justice of India DY Chandrachud and Justice SK Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha is hearing the matter since yesterday.
The affidavit highlights the importance of participation and/or consultation with all States being necessary for the adjudication of the present issue.
It further underlines that the subject matter of “marriage” falls exclusively in Entry 5 of the Concurrent List in the Seventh Schedule and that all the matters are very intrinsically connected with each other, therefore any deviation from the normal course would have a “cascading effect”.
The affidavit says that in 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 States a party to the present litigation. It says that despite the same, the States were not made a party to the present batch of petitions, 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.
The Centre says that "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".
The Centre has produced a letter issued yesterday by the Secretary of the Department of Legal Affairs to all States inviting comments and views on the seminal issue raised in the present batch of petitions.
During the hearing yesterday, Solicitor General Tushar Mehta had orally urged the Bench to make the States and UTs parties to the proceedings. "Only one aspect. Ultimately it is your lordship's prerogative. I should not be told after generation after generation that we did not to your lordship's notice. In the Special Marriage Act as well as in the Hindu Marriage Act, every states have separate rules, that makes more case for calling all the states and hearing them. Your lordships have a partial view from both sides. He may be very clear about his, I may be very clear about my view. But none of us represent views of the nation. That's my preliminary objection", SG Tushar Mehta had submitted yesterday.