Same-sex marriages: Union govt initiates process of collating views of states

The Union government has initiated the process of collating the views of the states on the legal validation for same-sex marriages even.

As the Supreme Court is yet to take a call on its plea to implead states in the matter. The court on Tuesday commenced its hearing on petitions demanding legal recognition for same-sex marriages even as it clarified the remit of the proceedings will confine to the validation of such unions only under the Special Marriage Act (SMA).

The Union law ministry later wrote a letter to the chief secretaries of the states asking them to submit their views on the subject within 10 days “so that the standpoint of the Union and State Governments are represented properly without delay.”

The Union government has brought on record its consultative process before the court by filing an affidavit, requesting the court to either make all states and Union territories parties to the case or let it conclude the consultation process.

In the letter to the states, a copy of which HT has seen, the ministry said that “marriage” falls under Entry 5 in the Concurrent List of the Constitution, enabling both the Union government and states to regulate the related issues. “Moreover, any decision on this matter requires an assessment of the ramifications on existing social customs, practices, values, norms, mores. State Rules and such like that may be prevalent in different sections of the society,” it said.

The ministry said it is important that a composite and cohesive view is presented before the court incorporating the views of all state governments. “For effective adjudication, the Union of India has requested the court to implead all states as parties in the case. The prayer is under consideration of the court.”

If the court decides not to issue notices to the state governments, the letter said, it will be expedient that states communicate their views for appropriate submissions by the Union of India before the court.

“You may note that the matter is ongoing in the Court and arguments of the petitioners have commenced. Accordingly. I would request you to offer your views within a period of ten days,” the letter said.

On Tuesday, the court overruled the Union government’s objections against the judicial determination of the issue. A constitution bench headed by Chief Justice of India Dhananjaya Y Chandrachud said that it will adjudge the issue in a “restricted arena” of granting validation to same-sex marriages by reading down or interpreting relevant provisions of the SMA. The bench also includes justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.

The Union government maintained that it is exclusively for the legislature to grant legal recognition to a social institution and that the court must first seek the views of all states. The bench set about to hear the matter saying it is for the bench to decide the course of the proceedings.

In an application filed on Sunday, the Union government urged the court not to interfere with the legislative policy that consciously outlaws same-sex marriages while seeking the dismissal of all the petitions on the ground of maintainability. The application followed a counter affidavit in March which said that legal validation of same-sex marital unions will cause “complete havoc” with the delicate balance of personal laws in the country and accepted societal values.