Today's Editorial

Today's Editorial - 07 May 2023

Centre’s stance on the same-sex marriage

Source: By Apurva Vishwanath: The Indian Express

The Supreme Court heard arguments on behalf of the government from Solicitor General Tushar Mehta in the case seeking legal recognition of same sex marriage. While urging the Court to leave the issue to Parliament, Mehta argued that the law cannot be re-drafted again to allow same-sex marriage. Here are six key arguments of the Centre.

  1. Religious definitions of marriage:The Centre’s first submission was that various religions havealways recognised marriage only between a man and a woman. Mehta argued that if a new idea of marriage has to be imagined, then it must be Parliament and not the Court which can create it.

“It is essential to note that marriage, even under the so-called secular Special Marriage Act, 1954, originates in personal law. The said secular enactments were enacted not as a means to create a new social legal institution, but rather as a means to overcome some limitations of religious personal laws,” he said.

  1. ‘Legitimate’ interest of state:Responding to the argument of the petitioners that the state can haveno role in regulating personal relationships, Mehta argued that the state has a ‘legitimate’ interest in regulating marriage. “The right to marry is not absolute and is always subject to the statutory regime provided by the competent legislature,” he argued.

He also cited several aspects of marriage which the state has regulated, such as age of consent to marriageprohibition of bigamy, prescription of prohibited degrees of marriage (which means one can’t marry their lineal ascendants, such as parents, grandparents, etc.), judicial separation, and divorce.

“The state can claim legitimate interest to regulate, when to marry, how many times to marry, whom to marry, how to separate, etc.” the Centre argued.

Mehta told the Court that if the petitioner’s argument were to be accepted, the law on bestiality or incest can also be challenged on the same grounds that the state cannot regulate personal relationships.

The Bench agreed with the Centre that an absolute statement that the state can have no interference in regulating personal relationships might not be correct. CJI DY Chandrachud in an oral observation gave the example of a parent-child relationship that is regulated by the state. “The state requires the child to be educated. The parent cannot say I have absolute control over the child,” he said.

  1. The right to privacy:In thelandmark 2017 decision recognising the right to privacy as a fundamental ri