In a fresh affidavit filed before the top court, the centre has urged the Supreme Court to make all the states and Union territories a party to the ongoing petitions on legalization of same sex marriage in the country. The centre represented by Solicitor General Tushar Mehta seeks to hold discussions with all the states and Union territories as the issue is of ‘seminal importance’. As marriage and family are placed in concurrent list of 7th schedule of the constitution, the centre has said it is necessary for it to make states and union territories the parties to the case and seek their views.
Entry 5 of the Concurrent List of the Indian Constitution includes Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition
all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. So the centre has urged that any change in the marital laws will require amendments in all the above fields.
“Therefore, it is clear that the rights of the States, especially the right to legislate on the subject, will be affected by any decision on the subject. Various States have already legislated on the subject through delegated legislations, therefore making them a necessary and proper party to be heard in the present case” the affidavit filed by centre says.
Thus the centre has, before the bench comprising CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, Justice Hima Kohli And Justice PS Narsimha, urged to seek all the view and opinions of the states and union territories, compile them and present before the Apex court. As the issue is said to have far reaching consequences on the socio-legal framework of the nation, the centre has felt it necessary to seek state views.
The centre had earlier questioned the maintainability of the petitions before the Top court, praying that Judiciary is not the right forum to discuss the issues and it should be left to the parliament to debate on it
Background of Same Sex Marriage
The Apex court headed by CJI Chandrachud had started hearing a batch of 20 petitions seeking recognition of same sex marriages in India. After a gay couple filed a petition before the top court to recognize same sex marriage in Special marriage Act, all these petitions which were pending before different High Courts were transferred to the SC in January 2024 and the hearing started on 18th April 2024. The petitioner side represented by Adv. Mukul Rohtagi, Menaka guruswamy, Saurabh Kirpal and others had argued that LGBTQ community should have a right to life and dignity and institution of marriage which is as of now solely available to heterosexual couples. The petitioners had urged to read provisions of special marriage act as marriage of ‘spouse’ instead of marriage between ‘man’ and ‘woman’.
While the centre represented by Solicitor General Tushar Mehta, opposing the same sex marriage had argued that marriage in India involves biological man and biological woman and that Judiciary is not the right forum to discuss this issue. The centre has said that parliament is the only right forum to discuss the issue and legislate on it.
The question of allowing same sex marriage in India gained light when the Supreme Court read down the ‘draconian’ colonial era section 377 of the IPC which criminalized same sex marriage.
In the Asian continent only Taiwan has allowed same sex marriages to be legal. Any further move on the issue shall have many civilizational consequences for India
