The Centre has told the Supreme Court that demand for same-sex marriage is a "mere urban elitist views for the purpose of social acceptance", and recognising the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law.
Opposing before the Supreme Court a decision to examine the issue for granting legal sanction to same sex marriage, the Centre asked could a constitutional court legislate to create a separate socio-legal institution of marriage between persons not contemplated by the existing legislation.
In an application, two days before a five-judge bench headed by Chief Justice of India is scheduled to hear the matter, the Centre said that petitioners seeking same-sex marriage rights "is a mere urban elitist view for the purpose of social acceptance". The top court is scheduled to take up the batch of petitions for recognising same-sex marriage on April 18.
It further added, "A decision by the court in recognising the right of same-sex marriage would mean a virtual judicial rewriting of an entire branch of law. The court must refrain from passing such omnibus orders. The proper authority for the same is the appropriate legislature."
The Centre stressed that petitions which merely reflect urban elitist views cannot be compared with the appropriate legislature which reflects the views and voices of a far wider spectrum and expands across the country. "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 keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes," it added.
The Centre queried, "While creating an institution like marriage, which is essentially a socio-legal concept, is it not constitutionally imperative to leave the question to the appropriate legislature which represent the democratic mandate, which would decide the issues based on societal ethos, societal values and larger societal acceptability in the Indian context of understanding of marriage as an institution?"
The Centre further added that recognition of human relations like that of a "marriage" is essentially a legislative function and the courts cannot either create or recognize any institution called "marriage" either by way of a judicial interpretation or striking down / reading down the existing legislative framework for the marriages, which undoubtedly occupies the field.
"The institution of marriage is necessarily a social concept and a sanctity to the said institution is attached under the respective governing laws and customs as it is given sanctity by law on the basis of social acceptance. It is submitted that social acceptance and adherence to societal ethos, common values, shared beliefs across religions, in case of recognition of 'socio-legal institution of marriage' is not to be confused with majoritarianism," it added.
The Centre contended that it necessarily follows that the right to personal autonomy does not include a right for the recognition of same-sex marriage and that too by way of judicial adjudication, and emphasized that marriage is considered to be an aspect of social policy of the nation across the world.
The Centre also cautioned that the ripple effects of such decisions are difficult to anticipate. "Under the scheme of our Constitution, the courts do not replace the policy of Legislature with its own. The exercise should only be 'what is the law' and not what the law should have been," it said.
The Centre said: "This is because conventional and universally accepted socio-legal relationships like marriages across all religions, is deeply rooted in the Indian social context and indeed is considered a sacrament in all branches of Hindu law. Even in Islam, though it is a contract, it is a sacred contract and a valid marriage is only between a biological male and biological woman. It is submitted that the same is the position across all religions existing in India," it said.
The Centre's response came on a batch of petitions challenging certain provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws as unconstitutional on the ground that they deny same-sex couples the right to marry or alternatively to read these provisions broadly so as to include same-sex marriage.