Govt urges SC to leave same-sex marriage issues to Parliament
According to the government, it is “impossible” for the constitution bench to conceive of the complexities that may arise from recognition of same-sex marriage.
The right to marry cannot mean compelling the State to create a new definition of “marriage”, the Union government emphasised on Wednesday, imploring the Supreme Court to desist from hearing the same-sex marriage case any further and leave the issue to Parliament for a decision.
According to the government, it is “impossible” for the constitution bench to conceive of the complexities and situations that may arise following the recognition of same-sex marriage and, therefore, the only “constitutionally permissible” option for the top court is to defer to the wisdom of Parliament.
Appearing before a five-judge bench led by Chief Justice of India Dhananjaya Y Chandrachud, solicitor general (S-G) Tushar Mehta commenced the submissions on behalf of the Centre by requesting the court to stop hearing the matter and wait for Parliament to take a call on a “very complex subject having profound social impact”.
The S-G, on the fifth day of arguments in the case, said the court’s exercise will have unintended ramifications not only on society but also on several statutes and at least 160 legal provisions beyond the Special Marriage Act (SMA), which, he said, cannot be reconciled if the court were to grant legal recognition to same-sex marriage.
On Wednesday, the bench raised similar concerns, observing that many aspects of same-sex marriage may fall within the legislative powers of Parliament, wondering as to “how far a court can go” when bringing same-sex unions under the ambit of the SMA is bound to impact personal laws as well. It had begun hearing the case on April 18 after turning down the Centre’s objections against the judicial determination of the issue. On that day, the bench, which also comprised justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, also clarified that the remit of the proceedings will be confined to recognition of same-sex marriage under the SMA.
The S-G said: “The real question in the matter is who would take a call on what constitutes a valid marriage and between whom? Debates are required by society, state legislatures and various civil society groups. My humble prayer is that this court can still save the rest of the exercise by leaving it to Parliament... by agreeing that this should be preceded by some debates.”
Mehta submitted that the legislative policy of Parliament is evident from the 2019 Transgender Persons (Protection of Rights) Act that protects not only transgenders but several other categories of persons, adding that Parliament has already accepted their right to choice, autonomy in terms of sexual preference and privacy in the form of intimate relationships.
“But the question here is whether the right to marry can be prayed for as a social institution by way of a judicial adjudication before this honb’le court. Right to marry cannot mean compelling the State to create a new definition of ‘marriage’. Parliament can do it, but it’s not an absolute right. My appeal is to rather than taking this any further, this is a subject that should be left to the choice of Parliament,” he averred.
The S-G added that a mere “vague” declaration on the right to marry would beg the question that if they have the right, how these rights will be regulated.
“The moment any right is recognised, it will have to regulated. Even today, there is no absolute right to marry for heterogeneous couples. The law provides for minimum age, outlaws bigamy, prohibits marriages between certain relationships, and separation is also regulated. So, the law for heterogeneous couples also regulate when you can get married, how many times you can marry, whom you can marry and how you can legally separate,” he pointed out.
Contending that the court may not be in a position of conceiving multiple situations that will arise after a declaration that petitioners ask for, Mehta said: “Several regulatory provisions follow legal recognition of a social relationship. Only Parliament can conceive of several situations that may arise and regulate them. It’s impossible for the court to conceive of all possible scenarios.”
He said that the request to this court is to rewrite an enactment (SMA) to suit a situation, but Parliament has the exclusive authority to do so. “The very heart of SMA is recognition of marriage between a conventional man and woman. I am not on the recognition but by whom is the question? What the petitioners are seeking is consciously omitted in SMA. Courts cannot change the fundamental nature of a law. Courts cannot substitute legislative intent which is manifest. Words of larger amplitude cannot be read into words of smaller amplitude. These are the limitations on courts too,” Mehta stressed.
He said that under the LGBTQIA+ community, there are people who do not identify with any gender as well as certain persons who may change their genders as per surroundings or mood swings. “It is impossible to reconcile all this through a judgment. Would it be prudent or legally permissible to deal with this subject on the judicial side? The court is not adjudicating a prohibition against a marriage. There is no prohibition for LGBTQ to marry but this court is on conferring a legal status of marriage which all religion considers as an institution,” said the law office.
Mehta emphasised that the six major religions in the world consider marriage as a valuable social institution even before marital laws were codified and that they have always followed man and woman principle in recognising unions.
“The only constitutionally permissible option for this court is to require Parliament or wait for Parliament to discuss and deal with this. Societal recognition is also one of the considerations for legal recognition of marriage and Parliament is the only authority to examine this... It will be vague declaration if it is to be made, without considering the problems that will arise... As a matter of prudence or policy, your lordship will not substitute the wisdom of legislature,” he argued.
At one point, Mehta read from the US Supreme Court’s controversial decision in Dobbs Vs X which held that there is no constitutional right to abortion. While the S-G clarified that the purpose of citing this judgment was to only highlight that the courts should return the matters involving complex social issues to the legislature, the bench remarked that the judgment cannot be a good example otherwise.
“If you are relying on Dobbs to support that principle then we have gone far beyond Dobbs in India, and fortunately so. Dobbs represent a view of the US Supreme Court that a woman has no control over her own bodily integrity. This theory has been debunked long back in our country. Fortunately, we have gone far ahead of many western countries on several issues,” added the bench.
In his submissions, the S-G also flagged that of 34 countries that have recognised the same-sex marriage, 29 countries framed laws while only in 5 others, the court prompted the change. Mehta will continue arguing the case on Thursday.
Around 50 petitioners have approached the top court asking for legalisation of same-sex marriage, arguing that denying them the right to wed was unconstitutional and violative of their fundamental rights. If they succeed, India will become only the third country in Asia to allow same-sex unions, a mere five years after the court decriminalised homosexuality.
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