'Urban Elitist Views': Centre Files Affidavit in SC Opposing Same-Sex Marriages

Seeking the dismissal of petitions favouring same-sex marriages, the Union government said any law on the matter can only be decided by the legislature and the courts have no role to play.

New Delhi: The Union government has again opposed same-sex marriages in the Supreme Court, arguing that the institution of marriage is “exclusively heterogenous” and those seeking same-sex marriages represent “urban elitist views for the purpose of social acceptance”.

In its second counter affidavit filed at the Supreme Court, the government of India said that the popular will of the people wanted the institution of marriage restricted to heterosexual individuals, Live Law reported.  

The government also sought the dismissal of a clutch of petitions pleading that same-sex marriages be made legal on grounds of maintainability. The apex court had recently notified the constitution of a five-judge bench to hear the petitions seeking legal recognition of same sex marriages.

The Union government argued that the courts could not intervene in the matter, as marriages – a socio-legal institution – can be created, recognised, or conferred with legal sanctity only by the competent legislature under Article 246 of the Indian constitution.

It said that any judicial interpretation or striking down the existing legislative framework for marriages is not under the domain of the judiciary. It cited a precedent Ashwini Kumar Upadhyay vs Union of India where the apex court refrained from framing “gender-neutral and religion-neutral” laws on the same ground and contended that even the countries which have made same-sex marriages legal have done it through the legislative route. 

The government’s affidavit further argued that despite India’s diversity in terms of religion, schools of religion, castes and sub-castes, personal laws have always sanctified only heterosexual marriages. In such a context, the government argued, that marriages that constitute the core of the concept of family and its cherished values need to be looked at by the legislature which is much better placed than the judiciary to reflect on the views and voices of a “far wider spectrum” than those belonging to only an “urban elitist” social sphere. 

The government also argued that excluding same-sex marriages from the institution of marriage doesn’t amount to “discrimination” as marriages, across all religions, are deeply rooted in the Indian context and considered a sacrament in personal laws. It said that even the Special Marriage Act, 1954 permitting inter-religious and inter-caste marriages only allows for heterosexual marriages. It said that a same sex marriage, in the Indian context, will be like comparing “two non-comparable classes”, and cannot be considered as a matter of right/choice, or a fundamental right.  

Finally, the government argued that regulation of marriage is a matter of “acceptance by the society” and has to be discussed and debated only in the legislature which represents the democratic voices much more than the judiciary.