The Centre has told the Supreme Court that creation of a new social institution is beyond the scope of judicial determination, as it opposed the recognition of same-sex marriage again, calling it an ‘urbanm elitist’ concept.
Courts cannot rewrite an entire branch of law by recognizing the right of same-sex marriage because ‘creation of a new social institution’ is beyond the scope of judicial determination, the Union government has submitted in the Supreme Court, questioning the maintainability of a clutch of petitions demanding legal validation for same-sex marriages in India.
The petitioners, including same-sex couples and right activists, have challenged the constitutionality of pertinent provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws on the ground that they deny same-sex couples the right to marry.
Alternatively, the petitions have requested the top court to read these provisions broadly so as to include same-sex marriage.
‘A decision by the court in recognizing the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law. The court must refrain from passing such omnibus orders. Proper authority for the same is appropriate legislature…Given the fundamental social origin of these laws, any change in order to be legitimate would have to come from the bottom up and through legislation…a change cannot be compelled by judicial fiat and the best judge of the pace of change is the legislature itself,’ stated the application submitted by the Centre.
Pointing out that the legislative policy in India recognizes marriage as a bond only between a biological man and a biological woman, the Centre asserted that it is ‘impermissible’ for the apex court to change the entire legislative policy of the country that is deeply embedded in religious and societal norms.
Such an exercise would ’cause havoc’ to a large number of statutes defining ‘husband’ as a biological man and ‘wife’ as a biological woman, it had said in its March affidavit.
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