It is elitist says Centre on same-sex marriages in Supreme Court

The Centre has told the Supreme Court that the courts cannot rewrite an entire branch of law by recognising the rights of same-sex marriages.

The Centre said that this cannot be done because of a creation of a new social institution and this is beyond the scope of judicial determination. The government is questioning the maintainability of a batch of petitions that has demanded the legal validation of same-sex marriages in India.

The Centre also maintained that the the petitions reflect an 'urban elitist view' for purpose of social acceptance. "This cannot be equated with appropriate legislature mirroring the views and voices of far wider spectrum of society.

"A decision by the court in recognising 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," the Centre said.

Hearing on the matter would commence on April 18 and it would be heard by a Bench comprising Chief Justice of India, Dhananjaya Y Chandrachud, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli.

The Supreme Court is seized of a batch of 15 petitions which demand a legal recognition to same-sex marriages.

"The question concerning legal recognition of same sex marriage and its parity with the existing concept of marriage, as an exclusively heterogenous institution, which is governed by the existing legal regime and has a sanctity attached to it in every religion in the country, seriously affects the interests of every citizen. It raises critical issues as to whether questions of such a nature, which necessarily entails the creation of new social institution, can be prayed for as a part of the process of judicial adjudication," the petitions stated.

"The courts cannot either create or recognise any institution called "marriage" either by way of a judicial interpretation or striking down/reading down the existing legislative framework for the marriages, which undoubtedly occupies the field," the Centre said.

"This is the only constitutional approach permissible under the Constitution while recognising any socio-legal relationship as an institution with sanction under the law. The competent legislature is the only constitutional organ which is aware of the above referred considerations. The petitioners do not represent the view of the entire population of the nation," the Centre also said.

"Any encroachment on the legislative powers solely reserved for the elected representatives would be against the well-settled principles of 'separation of powers' which is held to be a part of the basic structure of the Constitution. Any such deviation from the concept of separation of powers would be thus, contrary to constitutional morality," the government also said.