The Central government again opposed the petitions filed in the Supreme Court seeking legal recognition for same-sex marriage in India by way of a second counter affidavit.
Terming marriage as an ‘exclusively heterogenous institution,’ the Union of India contended that those seeking marriage equality in India merely represented ‘urban elitist views’ for the purpose of ‘social acceptance’.
It said the popular will of the people was that marriage be recognised solely amongst heterosexual individuals.
Seeking the dismissal of petitions on the grounds of maintainability, the Union government argued that marriage was a socio-legal institution which can be created, recognized, conferred with legal sanctity, and regulated only by the competent legislature by way of an Act under Article 246 of the Constitution.
The Union government further argued that even though India was a country of several divergent religions, castes, sub-castes and schools of religions, all personal laws and customs recognised marriage solely amongst heterosexual persons.
It said the institution of marriage was necessarily a social concept. The sanctity to the said institution was attached under the respective governing laws and customs, as it was given sanctity by law on the basis of social acceptance.
The plea further said that social acceptance and adherence to societal ethos, cherished values in the concept of family and shared beliefs across religions, in case of recognition of socio-legal institutions of marriage, could not be confused with majoritarianism.
It noted that the petitions seeking legalisation of same-sex marriages merely reflected ‘urban elitist’ views, which could not be compared with the appropriate legislature that reflected the views and voices of a ‘far wider’ spectrum expanding across the country.
The Union government said that excluding same-sex marriages from the institution of marriage was not discriminatory because the conventional and universally accepted socio-legal relationships like marriages across all religions, were deeply rooted in the Indian social context and indeed were considered a sacrament in all branches of Hindu law.
It said even Islam considered it as a sacred contract and had asserted that a marriage could only be considered valid between a biological male and a biological female.
This deep-rooted social context was also imbibed in the Special Marriage Act, 1954, which reflected a clear legislative policy of marriage between a biological man and a biological woman and recognised the elements of personal laws and customs, it pointed out.
Noting that giving parity to same-sex marriages would amount to comparing two non-comparable classes, the petition 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 counter-affidavit also noted that marriage has never been confined to a private sphere. It said the regulation of a marriage was 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 was the repository of democratic representation and reflected the will of the people.
It said this rationale was the very basis for the recognition of a marriage across jurisdictions by the State. Marriage was the condition precedent for the State’s very existence. Taking note of the laws on the subject, the Central government contended that they made clear that the legislative intent was to recognise marriage as being the union of one man and one woman only.
On April 16, the Apex Court declared the composition of the five-judge Constitution Bench, which would hear the bunch of petitions seeking legal recognition for same-sex marriage from April 18.
The Bench will comprise Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha.
A bunch of petitions were filed in the Supreme Court challenging the provisions of the Hindu Marriage Act, the Foreign Marriage Act and the Special Marriage Act to the extent that they did not recognise same-sex marriages.