Same-Sex Marriage Petitions Represent 'Urban Elitist Views', Popular Will Recognises Marriage As Exclusively Heterogenous : Centre To Supreme Court

The Union of India, in a second counter affidavit filed in the Supreme Court, has again opposed the petitions which seek legal recognition for same-sex marriage in India. While contending that marriage is "an exclusively heterogenous institution", the counter affidavit states that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance" and that the popular will of people is that marriage be recognised solely amongst heterosexual individuals. The Centre has sought for the Apex Court to dismiss the batch of petitions on grounds of maintainability. Recently, the Supreme Court notified the composition of the 5-judge bench which will hear the batch of petitions seeking legal recognition for same-sex marriage in India.

I. Legal sanctity to same-sex marriages can only be given by competent legislature, not courts

At the outset, the Centre has argued that marriage is 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 of India. It states that the courts cannot either create or recognize marriage either by way of a judicial interpretation or striking down or reading down the existing legislative framework for marriages. While contending that the Court recognising the right of same sex marriage would mean "virtual judicial rewriting of an entire branch of law", the Centre has cited the order of the Supreme Court in Ashwini Kumar Upadhyay v. Union of India, where the court refrained from framing “gender neutral and religion neutral laws” on the ground that the same fell within the legislative domain and the Supreme Court could not issue a mandamus asking the Parliament to frame laws. It also submits that even in the countries where same sex marriage has been recognised, the vast majority of countries have done so through the legislative route. 

II. Marriage Equality sought by 'urban elitists', popular will recognises marriage only amongst heterosexual persons

The affidavit further contends that even though India is a country of several divergent religions, castes, sub-castes and schools of religions, the personal laws and customs all recognise marriage solely amongst heterosexual persons. It states that–

"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 institution of marriage” is not be confused with majoritarianism."

Considering the sanctity attached to the institution of marriage in India, the societal ethos, cherished values in the concept of family, and other such relevant considerations, the affidavit argues that the petitions merely reflect urban elitist views which cannot be compared with the appropriate legislature which reflects the views and voices of "far wider spectrum and expands across the country."

III. Not discriminatory to exclude same sex marriages from institution of marriage

The Centre goes on to submit that it is not discrimination to exclude same sex marriages from institution of marriage. The following reasoning is provided for the same–

"This is because conventional and universally accepted socio-legal relationships like marriages across all religions, is 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 biological woman. It is submitted that same is the position across all religions existing in India. It is submitted that this deep-rooted social context is also imbibed in the Special Marriage Act, 1954."

Stating that while permitting inter-religious and inter-caste marriages, even the Special Marriage Act, 1954, reflects a clear legislative policy of marriage between a "biological man and a biological woman and recognises elements of personal laws and customs". The Centre has argued that to give parity to same sex marriage would amount to comparing two "non-comparable classes". It further argues 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. 

IV. Marriage is not confined to a private sphere

Finally, the Centre has submitted that marriage has never been confined to the private sphere. It is argued that–

"The regulation of marriage is 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 this rationale is the very basis for state recognition of a marriage across jurisdictions. It is submitted that marriage, thus becomes the condition precedent for the State’s very existence. reading of the impugned laws makes clear that the legislative intent was to recognise marriage as being the union of one man and one woman only..."