The Indian Government submitted a 56-page affidavit to the Supreme Court, opposing same-sex marriage on March 12. The affidavit cited the “accepted view”, that marriage between a biological man and woman is considered a “holy union” and is part of India’s “sanskar”.The government argued that marriage is regarded as a sacrament and a sanskar and is dependent on customs, rituals, practices, cultural ethos, and societal values that have been recognized by statute, religion, and society. Therefore, any deviation from this norm in human relationships can only be authorized by the legislature and not the Supreme Court.
The government also contended that the Court had decriminalized sexual intercourse between same-sex persons in its 2018 Navtej Singh Johar judgment but had not legitimized same-sex marriage as a fundamental right under Article 21 of the Constitution. Same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union, and its registration would result in the violation of existing personal and codified law provisions.
According to the government, statutory recognition of heterosexual marriage has been the norm throughout history and is foundational to the existence and continuance of the state. The government also claimed that limiting recognition to heterosexual marriages only is in the compelling interest of society and the state. The affidavit was filed in response to the Court's decision to examine petitions seeking to allow the solemnization of same-sex marriage under the Special Marriage Act. Petitioners contended that not recognizing same-sex marriage constitutes discrimination that undermines the dignity and self-fulfilment of LGBTQ+ couples. They also argued that the 1954 Act should provide equal protection to same-sex couples as it does to couples of different faiths and castes who wish to wed. The Court issued separate notices to the Union of India and the Attorney General of India and transferred various pending issues before various High Courts, including in Kerala and Delhi, to itself.
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