The Central government has opposed petitions in the Supreme Court seeking recognition of same-sex marriages, arguing that the issue must be left to the legislature.
In an affidavit filed before the top court, the BJP-led Centre said that interfering with the present system – which is governed by personal laws – “would cause complete havoc with the delicate balance of personal laws in the country and in accepted societal values”.
Living together as partners and having a sexual relationship with a person of the same sex – which was decriminalised by a 5-bench Constitution bench in 2018 – can’t be compared with an Indian family unit i.e. husband, wife and children born out of their union, it submitted.
Arguing that the issue has consequences, the government said, “It will, therefore, not be permissible to pray for a writ of this Hon’ble Court to change the entire legislative policy of the country deeply embedded in religious and societal norms.”
It further submitted that despite the decriminalization of Section 377 of the Indian Penal Code, the petitioners “cannot claim a fundamental right for same-sex marriage to be recognized under the laws of the country”.
It argued that the apex court’s 2018 ruling only gives the LGBT community its right to companionship – be it physical, mental sexual or emotional – and not same-sex marriage.
In its affidavit, the Centre said that its position on same-sex marriage does not violate Article 14 of the Constitution, which states that every Indian citizen is equal before the law.
“In terms of Article 14, same-sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically. Hence, there is an intelligible differentia (normative basis) which distinguishes those within the classification (heterosexual couples) from those left out (same-sex couples),” the affidavit reads.
The government further said that the special status granted to heterosexual marriages cannot be “construed as a discrimination against same-sex couples under Article 15(1) or as a privileging of heterosexuality”.
“Not every heterosexual union has a status at par with marriage,” it said.
“There can be no fundamental right for recognition of a particular form of social relationship. While it is certainly true that all citizens have a right to the association under Article 19, there is no concomitant tight that such associations must necessarily be granted legal recognition by the State.”
It stated that the decriminalisation of Section 377 of the IPC gave legal protection to persons of the same sex engaging in consensual sexual intercourse without being held criminally liable. “This, and no more than this, is what has been held in that case.”
“Seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender,” said the government.