Rajasthan, Assam and Andhra against same-sex unions, Supreme Court told

May 11, 2023 12:30 AM IST

The three states are ruled by three different parties: Rajasthan by Congress; Assam has a dispensation led by BJP; and AP has YSR Congress at the helm

Of the seven states that replied to the Union government’s letter of last month seeking their views on the legal recognition of same-sex marriages, three – Rajasthan, Assam and Andhra Pradesh -- have opposed the idea of ratification of such unions, citing the legislature’s prerogative to make laws and public opinion across religious faiths. The others have sought more time (which means it is three against and four undecided, and not three against, four for).

The bench is expected to conclude the hearing in the matter on Thursday and reserve its verdict. (Representational image)
The bench is expected to conclude the hearing in the matter on Thursday and reserve its verdict. (Representational image)

Also read: Shashi Tharoor responds to filmmaker's ‘betrayal’ charge as Congress-led Rajasthan opposes same-sex unions

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To be sure, the three states are ruled by three different parties: Rajasthan has a Congress government; Assam has a dispensation led by Bharatiya Janata Party; and Andhra Pradesh has YSR Congress at the helm.

As a constitution bench led by Chief Justice of India Dhananjaya Y Chandrachud heard the arguments in the same-sex marriage case on the ninth day, solicitor general Tushar Mehta, representing the Union government, informed the court about the replies received from the seven states, which included Maharashtra, Uttar Pradesh, Manipur and Sikkim apart from the three states mentioned above. HT has reviewed these replies.

While the other four states sought some more time to formulate their views in view of sensitivity of the matter, Rajasthan cited “public opinion” which it said is against legally recognising same-sex marriages even though there is nothing wrong with two homosexual persons choosing to live together. According to the Ashok Gehlot-led government, had there been favourable public opinion on the legal recognition of same-sex marriages, Parliament or a state legislature would have moved to frame a law in this regard. The Congress government added that it sought views of all district collectors in the state, and they have informed it that the public opinion is against the legal recognition of such unions.

Similarly, the YS Jagan Mohan Reddy-led Andhra Pradesh government informed the Union government that it consulted the heads of various religions in the state after receiving the Centre’s letter dated April 18, all of whom opposed the idea of same-sex marriages being granted legal recognition. The state government put on record views received from religious heads of Hindus, Muslims and Christians to conclude: “After considering the above views, I am to inform that the state of Andhra Pradesh is against the same-sex marriage and/or persons belonging to LGBTQIA+ community,” stated their letter.

The Assam government, in its reply, began by pointing out that the predominant views across different sections of society remain that marriage is a union between heterosexuals. “Further, it would be prudent to maintain that legislation is the prerogative of legislature, at Centre and in states, and the Courts may like to view the matter in accordance with core principles of our democratic structure. The Legislature reflects the collective wisdom of the nation and its citizens, and it solely possesses the power to enact a law governing human relationships,” stated the letter sent to the Centre by the Himanta Biswa Sarma-led government. It added that the state “would like to oppose” the petitions demanding legal recognition of same-sex marriages and would therefore, need more time to convey its views to the top court.

During the hearing on Wednesday, Mehta cited the missives from the states even as the S-G urged the bench to refrain from issuing any declaration -- either of acceptance of any right for same-sex couples or acceptance of the very relationship. The bench also comprised justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.

According to S-G, any declaration by the apex court will be a law declared under Article 141 of the Constitution of India and would, thus, be binding upon the entire country though the consequences of such declaration remain unknown and unintended. He pointed out that if a declaration is made by the bench but a priest refuses to solemnise a same-sex marriage, he could be dragged to a court for contempt. “Suppose a visa officer refuses to give a visa since the term used in regulation is ‘wife’. There can be many such instances. I ask myself will this court want to be flooded with contempt applications?” he asked.

Responding to him, the bench said that the contours of the declaration will be the key. It added that while the usual practice is to issue a writ of mandamus (directive to perform legal duties), there can very well be a declaration on the “status of affairs” as they are.

Mehta, on his part, said that the fallout of a declaration will be incapable of being foreseen or controlled by the court and therefore, the bench may not use its discretion to declare any right.

Also read: Bhumi Pednekar backs same-sex marriage in India, says she's 'an ally of the community'

The S-G’s note submitted before the bench further stated: “The Government of India is of the firm view that such a non-heterosexual ‘union’ has no legal recognition under any nomenclature though it is not prohibited. Mere permissibility to co-exist and stay together or absence of embargo, cannot be the ground for claiming right of any nature de hors legislative recognition.”

Senior counsel Maninder Singh, ANS Nadkarni, Manisha Lavkumar and advocates Priya Aristotle, J Sai Deepak and MR Shamshad also argued briefly, opposing the petitions. Rajya Sabha MP and advocate Sambit Patra also argued against the legal recognition of same-sex marriages through a judicial adjudication as the BJP leader appeared for an organisation.

The bench is expected to conclude the hearing in the matter on Thursday and reserve its verdict.

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