New Delhi: The Supreme Court on Monday instructed the petitions advocating for the acknowledgment of same-sex marriage to be presented to a Constitution bench comprising five judges, stating that individuals living together in same-sex relationships cannot be compared to the Indian family concept of a husband, a wife, and children born out of the union.
The Supreme Court bench led by the Chief Justice of India DY Chandrachud, and comprising Justice PS Narasimha and Justice JB Pardiwala slated the commencement of the hearing by the Constitution bench for April 18. This comes after the Central Government filed a counter-affidavit in the Supreme Court opposing a group of petitions seeking legal recognition for same-sex marriage.
According to the government, marriage itself presupposes a union between two individuals of the opposite sex, and this idea should not be disturbed or diluted by judicial interpretation. The government further argued that all personal laws and statutory enactments related to marriage recognize it as a union between a man and a woman only. It further argued that the fact that homosexual relationships have been decriminalized after the Navtej Singh Johar judgment does not justify legal recognition for such relationships as marriage.
The government further argued that the issue of legal recognition for same-sex marriage should be left to the competent legislature, where social, psychological, and other impacts on society and children can be debated. Recognizing such relationships as marriage can have wide-ranging ramifications, and the legislature can consider legitimate state interests while making a decision.
"Living together as partners and having a sexual relationship by same-sex individuals (which is decriminalized now) is not comparable with the Indian family unit concept of a husband, a wife, and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as a father and the biological woman as mother," the affidavit says.
"Statutory recognition of marriage limited to marriage/union/relation as being heterosexual in nature is the norm throughout history and is foundational to both the existence and continuance of the State", the Centre said while arguing that there is a compelling and legitimate State interest in recognizing only heterosexual marriages.
"While other forms of unions may exist in the society which would not be unlawful, it is open for a society to give legal recognition of the form of union which a society considers a quintessential building block for its existence", the affidavit stated.
The government further argued that not recognizing same-sex marriage does not violate any fundamental rights under Part III of the Constitution. The recognition of only heterosexual marriages is based on a reasonable classification, and there is an intelligible differentia between heterosexual and same-sex couples. It further said that recognizing same-sex marriage is not necessary to ensure social stability via the recognition of marriages.
The government also contended that not recognizing same-sex marriage does not violate Article 15(1) of the Constitution, which prohibits discrimination on the basis of sex. The government believes that no other form of cohabitation enjoys the same status as heterosexual marriage, including heterosexual live-in relationships. Therefore, not recognizing same-sex marriage does not discriminate on the basis of sex.
"While it is certainly true that all citizens have a right to the association under Article 19, there is no concomitant right that such associations must necessarily be granted legal recognition by the State. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same-sex marriage," the government said.
"While a marriage may be between two private individuals having a profound impact on their private lives, it cannot be relegated to merely a concept within the domain of privacy of an individual when the question of formalizing their relationship and the legal consequences flowing therefrom is involved. Marriage, as an institution in law, has many statutory and other consequences under various legislative enactments. Therefore, any formal recognition of such human relationship, cannot be regarded as just a privacy issue between two adults," the government affidavit argued.
Finally, the government argues that the petitioners cannot rely on the Puttaswamy judgment, which recognized the fundamental right to privacy. The government believes that the Navtej Singh Johar judgment did not extend the right to privacy to include a fundamental right to marry by two individuals of the same gender in contravention of prevailing statutory laws.
