In a second reply affidavit submitted to the Supreme Court, the Union of India once more expressed opposition to the petitions calling for same-sex marriage to be recognised legally in India. According to the counter affidavit, which asserts that marriage is “an exclusively heterogenous institution,” those who advocate for marriage equality in India merely represent “urban elitist views for the purpose of social acceptance” and that the popular will of the general public is for marriage to only be recognised among heterosexual people. The batch of petitions have been requested to be dismissed by the Supreme Court on grounds of maintainability by the Centre. The Supreme Court has announced the makeup of the five-judge panel that will hear the collection of petitions requesting legal recognition of same-sex unions in India.
Legal sanctity to same-sex marriages can only be given by competent legislature, not courts
The Centre has claimed that marriage is a socio-legal institution that can only be established, acknowledged, given legal sanctity, and governed by the competent legislature through an Act in accordance with Article 246 of the Indian Constitution.According to this, courts cannot establish new marriages or recognise existing ones through judicial interpretation, repealing existing marriage-related laws, or reading them down. The Centre argues that the Supreme Court’s recognition of the right to same-sex marriage would amount to a “virtual judicial rewriting of an entire branch of law” and cites the Supreme Court’s ruling in Ashwini Kumar Upadhyay v. Union of India, where the court declined to create “gender neutral laws” on the grounds that they belonged to the legislative branch and that the court could not issue a mandamus ordering the Parliament to do so. It further asserts that even in those nations where same-sex marriage has been legalised, most have done so through legislative means.
Marriage Equality sought by ‘urban elitists’, popular will recognises marriage only amongst heterosexual persons
The declaration also argues that despite the fact that there are many different castes, subcastes, and schools of religion in India, only heterosexual couples are permitted to get married under the country’s personal laws and customs. It reads as follows:
The institution of marriage is unavoidably a social construct, and as such, it is accorded sanctity by law on the basis of societal acceptance. This sanctity is attached under the various governing laws and conventions. When the “socio-legal institution of marriage” is recognised, it is argued that social acceptance and devotion to cultural ethos, shared values, and religiously diverse beliefs should not be equated with majoritarianism.
The affidavit argues that the petitions merely reflect urban elitist views and cannot be compared with the appropriate legislature, which reflects the views and voices of “far wider spectrum and expands across the country” and other such pertinent considerations. It bases this claim on 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.
Not discriminatory to exclude same sex marriages from institution of marriage
The Centre continues by arguing that excluding same-sex marriages from the institution of marriage is not discriminatory. The same is justified in accordance with the following:
This is due to the fact that traditional and widely recognised socio-legal connections, such as weddings across all religions, are firmly ingrained in Indian society and are even regarded as a sacrament in all branches of Hindu law. Even in Islam, a genuine marriage can only exist between a biological male and a biological female because it is a sacred commitment. According to one argument, the situation is the same for all of India’s recognised religions. It is argued that the Special Marriage Act of 1954 contains elements of this deeply ingrained social framework.
Even the Special Marriage Act, 1954, displays a clear legislative policy of marriage between a “biological man and a biological woman and recognises elements of personal laws and customs,” it is stated, even while permitting inter-religious and inter-caste unions. According to the Centre, granting same-sex marriage equality would amount to comparing two “non-comparable classes. “It also contends that the development or approval of a brand-new social institution cannot be justified as a question of choice or right, much less a basic one.
Marriage is not confined to a private sphere
The Centre has also argued that marriage has never been limited to the home. There is a claim that
The competent legislature, a body that is the repository of democratic representation and reflects the will of the people, should be the only entity allowed to debate marriage regulation because it is mostly a matter of social acceptance. This argument is put up as the main justification for governmental recognition of interjurisdictional marriages. Marriage allegedly becomes the prerequisite for the State’s very existence as a result. It is evident from a reading of the challenged laws that the legislature intended to recognise marriage as a partnership between a man and a woman.
