Indian government calls same sex marriage case ‘urban elitist view’ ahead of key court hearing

Marriage is ‘an exclusively heterogeneous institute’

The petitions seeking legalisation of same-sex marriage in India represents an “urban elitist view for the purpose of social acceptance”, the Indian government told the country’s top court on Monday, opposing marriage equality.

Calling marriage “an exclusively heterogenous institute”, the Narendra Modi-led government submitted that the Supreme Court should not try to judicially create a “new social institution”.

A constitutional bench headed by chief justice DY Chandrachud will commence hearing a batch of pleas seeking legal recognition of same-sex marriage in the country on Tuesday.

The bench, also comprising justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli, have seized a clutch of at least 15-petitions demanding marriage equality.

Contesting the maintainability of the petition, the government of India said that recognition of same-sex marriage is a part of the legislative process maintained by the government.

The petitioners, which included same-sex couples and rights activists, challenged the constitutionality pertaining to provisions of marriage laws on the ground that they deny same sex couples the right to marry and requested the court to read these provisions broadly so as to make them inclusive.

“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,” said the government’s application.

“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,” it stated, adding that “a change cannot be compelled by judicial fiat and the best judge of the pace of change is the legislature itself”.

The government submitted that the lawmakers “will have to take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws, as well as, customs governing the field of marriage together with its inevitable cascading effects on several other statutes”.

This is the second affidavit that the government of India has filed opposing same-sex marriage. Earlier in March, it said that same-sex individuals living together as partners and having sexual relationships was “not comparable to the Indian family unit concept” that involves a biological man and biological woman.

The opposition has also come from right-wing religious groups, including BJP’s ideological parent Rashtriya Swayamsevak Sangh (RSS) and the Jamia Ulama-i-Hind, which in their pleas have demanded that marriages should be allowed only among “opposite” genders.

The National Commission for Protection of Child Rights also opposed conferral of adoption rights to same-sex couples, saying that “allowing adoption to same-sex couple is akin the endangering the children”.

It cited a study conducted by Dr Paul Sullins of the Catholic University of America according to which same, emotional and developmental problems were twice as prevalent for children with same-sex parents than with children with opposite-sex parents.

"It has been further found that the lowest risk of emotional problems was observed among children living with both biological parents who were married."