On March 24, a group of former judges issued an open letter stating that legalisation of same-sex marriages “will strike at the very root of the family system and thus will have devastating impact on the society at large,” signed by Justice SN Dhingra. The letter noted, “purpose of marriage is not confined only to the physical intimacy of partners but goes far beyond and is indispensable for the growth of society by way of procreation of progeny.”
The letter claimed that certain “versed interest groups having no knowledge and regard of the civilizational importance of marriage” have approached the Supreme Court for legalising same-sex marriage. It is pertinent to note that the plea to legalise same-sex marriage has been referred to a Constitution Bench. The letter stated, “Any attempt at weakening a great and time-tested institution should be opposed vociferously by the society. Indian cultural civilization has constantly been attacked for centuries but survived against all odds.”
A group of former Judges issue a statement over the issue of legalisation of same-sex marriage.
"We respectfully urge the conscious members of the society including those who are pursuing the issue of same-sex marriage In Supreme Court to refrain from doing so in the best… pic.twitter.com/FJZsdkPPLr
— ANI (@ANI) March 29, 2023
The letter claimed that the Indian cultural civilisation is facing attacks on its cultural roots in independent India with the “superimposition of western thoughts, philosophies and practices which are not viable for this nation at all.” Furthermore, the letter added that “the cancerous problems that the West is facing are sought to be imported into Bharat by vested interest groups through the misuse of judiciary as an institution in the name of right to choice.”
The letter cited the Centers for Disease Control and Prevention in the HIV Surveillance Report, for 2019 and 2020, wherein it was reported that “70% of new HIV-AIDS incidence in the country was amongst the gay and bisexual men.” The letter claimed that legalising same-sex marriage will lead to an “exponential rise in the number of HIV-affected.”
Furthermore, the letter claimed that “there are studies to state that legalising homosexual marriage will have negative consequences over the children adopted by such couples, including their emotional and psychological development as well as on their nurturing in an environment devoid of balanced parenthood.
The letter claimed that legalising same-sex marriages will “change the entire gamut of all personal laws from marriage to adoption and succession. In the long run, there are serious concerns that the gene pool is also going to be weakened affecting the entire human race especially in terms of collective herd immunity and progressive evolution.”
The letter claimed that “owing to its devastating impact on children, family, and society, mindless attempts to ape the practices of West in India, especially by legalising same-sex marriage, would prove to be a death knell to the already crumbling family system and devastating impact on the society at large.”
Furthermore, the letter remarked on the Supreme Court’s hearing of the plea, stating, “Instead of having wide-range discussions and deliberations amongst the stakeholders and without there being any vociferous demand from any section of society, such a hasty judicial intervention is unfortunate, and totally unwarranted. The separation of powers is a part of the basic structure of the Indian Constitution. The exercise of law-making is an exclusive domain of the legislature and not the judiciary, especially in matters exclusively within social and political domain.”
The letter opined, “it is our concerted opinion that such sensitive issue concerning the society at large be debated In the Parliament and State legislature as well. Even before bringing such kind of law, the opinion of the society must be obtained to ensure that the law must represent the wish of the society and do not fulfil the desire of few elite sections of the society.”
The letter concluded, “We thus respectfully urge the conscious members of the society Including those who are pursuing the Issue of same-sex marriage In Supreme Court to refrain from doing so in the best.”
Government of India’s counter affidavit opposing same-sex marriage
The Government of India submitted a counter-affidavit to the SC opposing recognising same-sex marriage. The Government of India argued that decriminalising section 377 of the Indian Penal Code does not give rise to claims seeking recognition of same-sex marriage.
The Government of India’s counter-affidavit stated, “Living together as partners and having sexual relationship by same-sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as father and the biological woman as mother,” Live Law reported.
The Government of India said, “the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation.”
Furthermore, the Government of India said that all personal laws and statutory enactments recognise marriage as a union between a biological man and a woman; therefore, there is a clear legislative intent which makes judicial intervention to rewrite the law impermissible.
The Government of India argued legitimate state interest in recognising only heterosexual marriage. It said, “Statutory recognition of marriage limited to marriage/union/relation as being heterosexual in nature, is the norm throughout history and are foundational to both the existence and continuance of the State,” Live Law reported. “While other forms of unions may exist in the society which would not be unlawful, it is open for a society to give legal recognition of the form of union which a society considers to be quintessential building block for its existence,” the Government of India submitted in its counter-affidavit to the SC.
The Government of India argued that giving legal recognition to same-sex marriage would complicate issues related to adoption, divorce, maintenance, inheritance, etc., considering all statutory provisions are based on marriage between a man and a woman.
The Government of India argued that the non-recognition of same-sex marriage does not violate any fundamental rights under Part III of the Constitution of India. Furthermore, the Government of India submitted that there is a reasonable classification for recognising only heterosexual marriage. It said, “There is an intelligible differentia (normative basis) which distinguishes those within the classification (heterosexual couples) from those left out (same-sex couples). This classification has a rational relation with the object sought to be achieved (ensuring social stability via recognition of marriages),” Live Law reported.
The Government of India argued that the non-recognition of homosexual marriage could not be construed as discriminatory, stating, “This is because no other form of cohabitation enjoys the same status as heterosexual marriage including Heterosexual live-in relationships…To fall foul of Article 15(1), there should be discrimination only on the basis of sex. It is evident that this condition precedent is not at all satisfied in the present case,” Live Law reported.
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