The Centre has opposed the batch of petitions filed in the Supreme Court seeking legal recognition of same-sex marriage in India. In an affidavit that came in public domain on Sunday, the government has said that same-sex marriages are “not comparable with the Indian family unit concept”.
In January, a Supreme Court bench headed by Chief Justice DY Chandrachud had transferred several petitions pending before various High Courts to itself, and asked the Centre to submit its response on the matter.
In its reply, the Centre has said that the matter was beyond “mere recognition and registration” of marriage as an Indian family unit consists 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”.
The government has also argued that not allowing same-sex couples to marry does not violate their fundamental rights. It added that the existing laws on marriage pertain to heterosexual couples and the Supreme Court is not permitted to override them.
The affidavit also stated that marriage was not merely a “privacy issue” between two individuals, but it affects the social fabric of the country. “Considerations of societal morality are relevant in considering the validity of the legislature,” the Centre said.
It contended that while all citizens have the Right to Association under Article 19, there was no provision that they must necessarily be granted legal recognition. The Centre also said that petitioners cannot interpret the Right to Life and Liberty under Article 21 as an implicit approval of same-sex marriage.
The Supreme Court had decriminalised homosexuality in India in a landmark judgement in 2018. A five-judge Constitution bench had unanimously held that Section 377 of the Indian Penal Code that criminalised consensual gay sex was “irrational, indefensible and manifestly arbitrary”.
In December, Bharatiya Janata Party MP Sushil Kumar Modi had said in Parliament that same-sex marriage should not be legalised in the country and that the judiciary should also not give any decision which goes against the cultural ethos of India.
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