New Delhi: Dubbing the demand for recognition of same-sex marriage as an “urban elitist concept far removed from the social ethos of the country”, the Centre on Sunday questioned the Supreme Court’s competence to entertain petitions demanding extension of the concept of marriage beyond heterosexual unions and said it was tantamount to creating a new social institution.
Raising preliminary objections through an application filed two days before the scheduled hearing in front of a five-judge bench led by CJI D Y Chandrachud, the Centre said the petitioners, by demanding same-sex marriage rights, were advancing “mere urban elitist views for the purpose of social acceptance”.
“The competent legislature will have to take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations and also personal laws as well as customs governing the field of marriage,” it said, setting the stage for a conflict which will reverberate through the social-cultural arena and beyond it.
Marriage is an institution which can be created, recognised, conferred with legal sanctity, and regulated only by the competent legislature, the Centre said, digging in its heels for an intense fight with the judiciary which seems keen to build upon its order to decriminalise sex between consenting adults to confer more rights on persons having alternative sexual orientation.
Stating that the apex court did not have the mandate either to create or recognise a new social institution like “same-sex marriage”, the Centre said the broadening of the concept of marriage could not be achieved by challenging the existing regime, which restricts the institution of marriage between a biological man and a biological woman, upon which several legislations are based.
It said, “Any further creation of rights, recognition of relationship and giving legal sanctity to such relationship can be done only by the competent legislature and not by judicial adjudication.”
A five-judge Constitution bench of the Supreme Court comprising Chief Justice of India DY Chandrachud, and Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, is set to hear a clutch of petitions seeking legal recognition for same-sex marriages on Tuesday.
The matter “raises critical issues as to whether questions of such a nature, which necessarily entails the creation of a new social institution, can be prayed for as a part of the process of judicial adjudication”, it contended.
The Centre pointed out that further creation of rights, recognition of relationships, and giving legal sanctity to such relationships can be done only by the legislature, and not by the judiciary. “It’s purely a matter of legislative policy under Entry 5 of List III of Schedule VII of the Constitution, which ought to be determined by the appropriate Legislature only,” the Centre emphasised.
According to the Constitution, the courts do not replace the policy of the legislature with its own. The exercise should only be “what is the law” and not “what the law should have been”, it added.
