The Centre on April 17, 2023, told the Supreme Court that the demand for legal recognition of same-sex marriage is merely a voicing of “urban elitist views” for the purpose of social acceptance.
The court should not try to judicially create a “new social institution” by endorsing same-sex marriages. The judges should leave the task to the Parliament, the people would decide whether such a “marriage of a different kind” is socially and religiously acceptable or not, the Centre said.
The government has filed this affidavit on the eve of the hearing of the same-sex marriage case before a Constitution Bench led by Chief Justice of India D.Y. Chandrachud.
“Creation or recognition of a new social institution cannot be claimed as a matter of right/choice, much less a fundamental right,” the Centre said. The right to personal autonomy does not include a right for the recognition of same-sex marriage.
The court would adjudicate solely on the basis of petitions containing “elitist views”, while the legislature, on the other hand, would take into broader views and voices of the rural, semi-rural and urban population, the religious denominations, personal laws and customs and effect of same-sex unions on other laws governing marriage.
The existing concept of marriage as a heterogenous institution has the sanctity of law and religion. The legal recognition of same-sex marriage would “seriously affect the interests of every citizen”.
In an interesting argument, the Centre said fundamental rights like the right to choose one’s sexual orientation as well as the right to privacy have already been protected under the Transgender Persons (Protection of Rights) Act, 2019. “Any further creation of rights, recognition of relationship and giving legal sanctity to such relationships can be done only by the competent legislature and not by judicial adjudication,” the affidavit reasoned.
“Marriage is considered to be an aspect of social policy of the nation across the world. It is within the remit of the appropriate legislature, as the elected representatives of the people, to define it, recognise it and regulate it and the choice not to recognise same-sex marriage is simply a facet of the legislative policy,” the affidavit said.
In an earlier affidavit, the Centre had found the idea of same sex marriage a threat to the “holy union” of marriage between a biological man and a woman in India where the union is a “sacrament and a sanskar”.