Same-Sex Marriage- Judicial Creation Of A New Social Institution Of Marriage: Read Centre's Application Raising Preliminary Objections

In the plea seeking legal recognition for same-sex marriages, the Centre has filed an application seeking preliminary adjudication of an issue of vital importance.

"...the prayers made would entail the judicial creation of a social institution called “marriage” of a different kind than contemplated under the existing law. It is submitted that the said issue goes to the root of the present matter and has far reaching implications", the Centre says in its latest application. 

The Centre has submitted that the question concerning legal recognition of same sex marriage and its parity with the existing concept of marriage, as an exclusively heterogenous institution, which is governed by the existing legal regime and has a sanctity attached to it in every religion in the country, seriously affects the interests of every citizen.

"It raises critical issues as to whether questions of such a nature, which necessarily entails the creation of new social institution, can be prayed for as a part of the process of judicial adjudication", the application drafted by Advocate Kanu Agrawal and settled by SG Tushar Mehta reads.

The Centre has told the Supreme Court that the Court has already recognized the right of choosing one’s sexual orientation as well as the right to Privacy. It further added that any further creation of rights, recognition of relationship and giving legal sanctity to such relationships can be done only by the competent legislature.

The Centre has averred that what is presented before the Court is a mere urban elitist views for the purpose of social acceptance and that the competent legislature will have to take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing marriage.

“… it would be very relevant to consider that what is presented before this Hon'ble Court is a mere urban elitist views for the purpose of social acceptance. The competent legislature will have to take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes”, the affidavit by the Centre reads.

The petitions filed before the Supreme Court seek recognition of a right of marriage amongst same-sex persons, transgenders, queers, etc.

The Centre has contended that the petitions which merely reflect urban elitist views cannot be compared with the appropriate legislature which reflects the views and voices of far wider spectrum and expands across the country.

“It is submitted that personal laws and the laws recognizing personal relationships, are essentially those social norms which have been codified into legal norms by the Legislature. Hence, questions of such personal relationships ought not to be decided without accounting for the views of the society at large which can be done only by the competent legislature”, the application filed through Advocate AK Sharma says.

The Union of India has raised the following preliminary objections:-

“1. In view of the law-making power only being available with the competent legislature under Article 246 of the Constitution of India read with (Entry 5 List III ) of VII Schedule of Constitution, can a constitutional court legislate to create a separate socio-legal institution of marriage between persons not contemplated by the existing legislation or interpret the existing legislation in such a way that it destroys the fundamental fabric of the existing legislations which necessarily presuppose a marriage between a biological man and a biological woman?

2. While creating an institution like marriage, which is essentially a socio-legal concept, is it not constitutionally imperative to leave the question to the appropriate legislature which represent the democratic mandate, which would decide the issues based on societal ethos, societal values and larger societal acceptability in the Indian context of understanding of marriage as an institution?”

It has been stated by the Centre that it is not discrimination to grant recognition to heterogenous institution of marriage alone to the exclusion of same sex marriage. It was further added that the sanctity of marriage in every religion is a legal recognition of a longstanding sociohistorical reality and giving parity to same sex marriage would amount to conferring it with the same sanctity and legal status would not only be comparing two non-comparable classes but can be done only by Legislature.

The Centre averred that the petition is an attempt to enforce the social institution in the personal understanding of the Petitioner by way of an order of the Court.

“…the present petition is an attempt to enforce the social institution in the personal understanding of the Petitioner by way of an order of this Hon’ble Court. It is submitted that the Petitioners through this petition are trying to circumvent the parliamentary procedure and the concept of separation of powers and trying to do indirectly what they cannot do directly, which is not permissible under law”, the affidavit by Centre read.

The Affidavit further reads that Parliament is presumed to know what is in the best interest of the people in making a law and that howsoever well intentioned a measure may be, it must not to be introduced in transgression of this basic principle.

“It is therefore necessary that such issues are left for being decided by the competent Legislature where social, psychological, religious and other impacts on society can be debated. It would also have to be seen if such recognition or creation would dimmish the special status enjoyed by heterogenous institution of marriage across the country. This will ensure that wide ranging ramifications of recognizing such sacred relationships are debated from every angle and legitimate state interest can be considered by the Legislature”, reads the affidavit.

Thus it has been prayed to dismiss the petitions on grounds of maintainability.

Cause Title- Supriyo @ Supriya Chakraborthy v. Union Of India & Anr.

Click here to read/download Centre's Application