THE CENTRE on Wednesday told the Supreme Court that it had received responses from seven states on the plea to grant legal recognition to same-sex marriages. While three states — Rajasthan, Assam and Andhra Pradesh — have opposed the plea, the remaining four — Sikkim, Maharashtra, Uttar Pradesh and Manipur — have sought more time.
The Centre had sought the views of all states and Union territories after the Supreme Court took up petitions seeking legalisation of same-sex marriages.
Solicitor General Tushar Mehta, appearing for the Centre, told a five-judge Constitution Bench headed by Chief Justice of India D Y Chandrachud, that he was placing the states’ responses on record. The Bench also comprises Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
In its response, the Congress-ruled Rajasthan government said the public mood in the state appears to be against same-sex marriages. It, however, added that if two people of the same sex voluntarily decide to live together, it cannot be termed wrong.
Citing a report of its social justice and empowerment department, the state said same-sex marriages will create imbalance in the social fabric, which can have far-reaching adverse implications for the social and family system.
It said it had written to all district collectors, who opined that such practices are not prevalent in any district and would be against public opinion. The state added that if public opinion was in favour of same-sex marriages, the state legislature or Parliament would have taken steps to bring a law by now.
The YSR Congress-ruled Andhra Pradesh government said that it consulted heads of various religions, adding that Hindu, Muslim and Christian religious heads opposed the plea.
“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,” it said.
The state said that after considering all views, it is against same-sex marriage and of persons belonging to the LGBTQIA+ community.
The BJP-ruled Assam government said legal recognition of marriages between same-sex and LGBTQIA+ couples invokes new interpretations, and challenges the validity of laws concerning marriage and personal laws in the state which has diverse cultures, creed, customs and religions.
“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,” it said.
The state also said that legislation is the prerogative of the legislature, both at the Centre and in the states, and added that “courts may like to view the matter in accordance with the core principles of our democratic structure”. It pointed out that marriage, divorce and ancillary subjects fall under entry 5 of the concurrent list of the Constitution.
Accordingly, the Assam government said it “would like to oppose the views in the matter as laid out by petitioners” before the SC.
The state governments of Sikkim, Maharashtra, Uttar Pradesh and Manipur sought more time to formulate their stand. The Sikkim government said it “is constituting a committee to conduct an in-depth study and to assess the ramifications… on social customs, practices, values, norms… after due consultation with all the stakeholders”.
The petitioners have sought a declaration that same-sex couples have the right to marry and legal recognition of the same by rewording of The Special Marriage Act, 1954. Mehta said the court “may not use its discretion merely for declaration of any right”.
“If the court accepts the proposition that the power of recognition of any socio-legal relationship vests in the competent Legislature, any declaration by… the 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 sensitivity and social impact of the issue involved,” he said.
He added that a mere declaration by the court, either of acceptance of any right or acceptance of relationship, has unknown and unintended consequences and the court “has no mechanism to foresee as to how such binding declaration…can be utilised in future”.
Appearing for a women’s organisation, Bharatiya Stree Shakti, Advocate J Sai Deepak said: “While the Indic civilisation is not unfamiliar with non-binary gender relationships and may not have penalised it, it is equally a fact that a union between two consenting heterosexual adults has been and remains the norm, and public morality is typically shaped by the norm. This does not amount to majoritarianism, but is a fact of nature and society”. The lawyer said it would be best left to the legislature.
© The Indian Express (P) Ltd
First published on: 11-05-2023 at 04:00 IST