"No Absolute Concept Of Man, Woman": Supreme Court In Same-Sex Marriage Hearing

Wednesday, April 19, 2023, 9:11

Marriage is an 'exclusively heterogeneous institution' said the Centre before the Supreme Court on Monday, 17 April 2023 and opposed granting legal sanction to gay marriages in India.

Before, the apex court of India, a fresh application was submitted by the centre related to the legal recognition of same-sex marriage where the Centre raised questions on the maintainability of the petitions as a preliminary issue, and said that the prayers would entail the judicial creation of a new institution.

Apr 19, 2023 9:10 AM
"No Absolute Concept Of Man, Woman": Supreme Court In Gay Marriage Case

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Apr 18, 2023 12:20 PM
A five-judge constitution bench is hearing petitions seeking legal recognition of same-sex marriage

On 18 April 2023, a five-judge constitution bench (Chief Justice of India D Y Chandrachud, Justice Sanjay Kishan Kaul, Justice P S Narsimha, Justice Hima Kohli and Justice S Narsimha) of the SC will hear numerous petitions seeking legal recognition of same-sex marriage.

Here is what the submission by the Centre to the apex court mentions:

1. Same-Sex Marriages Reflect 'Urban elitist views'

Petitions that seek the legal recognition of gay marriages only reflect urban elitist views and they can't be compared to the appropriate Legislature which represents the opinions and voices of a far wider spectrum and expands pan India.

According to the media reports, the Centre said, 'This would not in fact and cannot, in law, mean a majoritarian approach. This is the only constitutional approach permissible under the Constitution while recognising any socio-legal relationship as an institution with sanction under the law. The competent Legislature is the only constitutional organ which is aware of the above-referred considerations. The petitioners do not represent the view of the entire population of the nation.'

2. Gay Marriages Can Be Recognized Only Through Legislation
In its submission, the Centre told SC that recognition of relationships, any further creation of rights, and giving legal sanctity can be done only by the competent Legislature and not by judicial adjudication. Further, it also stressed that the petitions that seek legal recognition of gay marriages have far-reaching implications.

3. Marriage Is An Exclusively Heterogenous Institution
Marriage is governed by a legal regime and exists as a heterogeneous institution. Also, it has sanctity attached to it from every religion and therefore, changing it will affect every citizen in the nation. Further, the Centre has mentioned that judicial adjudication cannot answer the question of creating a new social institution like that of same-sex marriage.

4. Marriage Is Necessarily A Social Concept
Centre said that marriage is necessarily a social concept and is completely based on social acceptance. Marriage between a heterosexual couple enjoys sanctity under the respective governing laws and customs as it is given sanctity by law depending on social acceptance. Also, social acceptance and adherence to societal ethos, common values, and shared beliefs across religions, in the case of recognition of the 'socio-legal institution of marriage', should not be confused with majoritarianism.

5. Judicial Review Should Not Become Judicial Legislation
The constitutional provision for the power of judicial review cannot become judicial legislation and mentioned that the personal laws in this country represent a social agreement by which certain norms have been crystallised into law. And judicial intervention to recognise same-sex marriage risks upsetting this balance.

6. Competent Legislature Needs To Debate Social, Psychological, And Religious Impacts
In its submission, the Centre has pointed out that under Article 246, the people's representatives have the authority to decide which social relationships will be recognised as part of the legislative policy. Also, the issues related to gay marriages are left to be decided by the competent Legislature, where social, psychological, religious and other impacts on society can be debated.

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