Centre files counter affidavit on same-sex marriage to Supreme Court

The Centre has opposed Supreme Court petitions seeking recognition of same-sex marriage. While filing a counter-affidavit, the government said that decriminalisation of Section 377 IPC does not give rise to a claim to seek recognition for same-sex marriage, news agency PTI reported.

In its affidavit filed in the top court, the Union Government said “Parliament has designed and framed the marriage laws in the country, which are governed by the personal laws/codified laws relatable to customs of various religious communities, to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences” and “any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values”.

The Centre's counter affidavit was filed in response to multiple petitioners' requests for legal recognition of same-sex marriages. The case will be heard by the Supreme Court on Monday.

The government said that same-sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically.

In its affidavit, the Centre stated that for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos, western decisions sans any basis in Indian constitutional law jurisprudence, cannot be imported in this context.

The Centre said that “the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation”.

The Centre argued that the principles of legitimate state interest, which are an exception to life and liberty under Article 21, would apply in this case. The Centre submitted that statutory recognition of marriage as a union between a "man" and a "woman" is inextricably tied to acceptance of the heterogeneous institution of marriage and acceptance of Indian society based on its own cultural and sociological norms acknowledged by the competent legislature.

"There is an intelligible differentia (normative basis) which distinguishes those within the classification (heterosexual couples) from those left out (same-sex couples). This classification has a rational relation with the object sought to be achieved (ensuring social stability via recognition of marriages)," the government said.

A bench headed by CJI Chandrachud, who was also part of the Constitution bench that decriminalised consensual gay sex in 2018, issued a notice to the Centre in November last year, besides seeking Attorney General R Venkataramani's assistance in dealing with the pleas.

The top court's five-judge Constitution bench, in a path-breaking unanimous verdict delivered on September 6, 2018, held that consensual sex among adult homosexuals or heterosexuals in a private space is not a crime while striking down a part of the British-era penal law that criminalised it on the ground that it violated the constitutional right to equality and dignity.

The petitions on which the top court issued the notice in November last year have sought a direction that the right to marry a person of one's choice be extended to LGBTQ (lesbian, gay, bisexual, transgender and queer) people as part of their fundamental right.

One of the petitions sought an interpretation of the Special Marriage Act, 1954 in a gender-neutral manner where a person is not discriminated against due to his sexual orientation.

The apex court, in its 2018 judgment, held that section 377 of the Indian Penal Code (IPC) that criminalised consensual gay sex was "irrational, indefensible and manifestly arbitrary".

It had said the 158-year-old law had become an "odious weapon" to harass the LGBT community by subjecting its members to discrimination and unequal treatment.

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