Supreme Court of India hears plea seeking legal recognition of 'marriage' for same-sex couples
The Government of India informed the Supreme Court that it had received responses from 7 states – Rajasthan, Assam, Andhra Pradesh, Sikkim, Maharashtra, Uttar Pradesh and Manipur – concerning the plea to grant legal recognition to same-sex marriages. The Government of India had sought the views of all states and union territories in the same-sex marriage case.
While Rajasthan, Assam and Andhra Pradesh have opposed the plea, the other four states – Sikkim, Maharashtra, Uttar Pradesh and Manipur – have sought more time for an expansive debate. The Government of India’s counsel, Solicitor General Tushar Mehta, informed the Supreme Court that he had placed the states’ responses on record.
It is pertinent to note that Gujarat and Madhya Pradesh appeared before the Constitution Bench to voice their objections to the legal recognition of same-sex marriage. Furthermore, apart from the Bharatiya Janata Party’s (BJP) ruled states, certain opposition parties, including Congress in Rajasthan and YSR Congress in Andhra Pradesh, have also voiced objections to legal recognition of same-sex marriage.
The Ashok Gehlot-led Rajasthan Government cited a report of its social justice and empowerment department and said that the legalisation of same-sex marriage would create an imbalance in the social fabric which could have far-reaching adverse impact on the social and family system.
The Rajasthan Government said that the public mood appears to be against same-sex marriages, however, if same-sex couples voluntarily decide to live together, it cannot be termed wrong. Furthermore, the government said that it had written to all district collectors, who responded that such practice was not prevalent in any district and would be contrary to public opinion. The government also claimed that if the public opinion supported same-sex marriages, then it or the Parliament would take steps to bring a law for the same.
The Jagan Mohan Reddy-led Andhra Pradesh Government consulted various heads of religion and said that Hindu, Muslim and Christian religious heads opposed the plea. The government said, “Christian bishops and Jain monks have opined that attraction towards the same sex is due to change in the hormones in the body and the people who are suffering with the said disorder must be treated softly by not hurting their feelings.” Furthermore, the government said that after considering opinions, it is against legal recognition to same-sex marriage and of persons belonging to the LGBTQIA+ community.
The Himanta Biswa Sarma-led Assam Government said that the legal recognition of same-sex marriages invokes new interpretations and challenges the validity of current legislation concerning marriage and personal laws. It said, “While the matter calls for wide-ranging discussions on the various aspects of the institution of marriage as a social phenomenon… even across cross-sections of societies, the legal understanding of marriage has been that of an agreement/contract between two persons of opposite genders.”
The Assam Government also stated that enacting legislation in the legislature’s prerogative and that the “courts may like to view the matter in accordance with the core principles of our democratic structure,” adding that marriage, divorce and other related laws falls under Entry 5 of the Concurrent List of the Constitution of India. The government said that it “would like to oppose the views in the matter as laid out by petitioners.”
The state governments of Sikkim, Maharashtra, Uttar Pradesh and Manipur have sought more time for an expansive debate on the issue. The Sikkim Government has informed that it is constituting a committee to conduct an in-depth study and to assess the ramifications on social customs, practices, values and norms after due consultation with all stakeholders.
The Solicitor General informed the Supreme Court that a ‘constitution declaration’ may not be the ‘correct course of action’ as the same would be law under Article 141 of the Constitution of India and therefore, binding on the whole nation and not just all courts.
He added, “If the court accepts the proposition that the power of recognition of any socio-legal relationship vests in the competent legislature, any declaration by this court would be a law declared under Article 141 of the Constitution of India and would, thus, be binding upon the entire country. Such a course of action would, therefore, pre-empt and prevent any debate on the issue which is absolutely essential considering the very sensitivity and social impact of the issue involved.”
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