Same-Sex Marriage Case: Of The Seven, Three States Oppose It, Four Yet To Decide

Out of the seven states approached by the Union government for their stance on the legal recognition of same-sex marriages, three – Rajasthan, Assam, and Andhra Pradesh have declared their opposition.

They defend their opposition by citing the legislature's right to create laws and considering public opinion across different religions. Meanwhile, the other four states have sought more time to reflect on the matter.

Rajasthan is governed by Congress, Assam by BJP, and YSR Congress is at the helm in Andhra Pradesh. All three states are ruled by different parties.

During the ninth day of the hearing for the same-sex marriage case, a constitution bench headed by Chief Justice of India D Y Chandrachud heard arguments on Wednesday.

The Union government's representative, solicitor general Tushar Mehta, updated the court on the replies received from seven states, including Maharashtra, Uttar Pradesh, Manipur, and Sikkim, reports Hindustan Times.

According to the report, Rajasthan cited "public opinion" against such recognition. The state's government claimed that nothing was wrong with two homosexual persons choosing to live together, but that legal recognition of such relationships was not in line with public opinion.

The Ashok Gehlot-led government added that if there had been favorable public opinion on the matter, Parliament or a state legislature would have passed a law to recognize same-sex marriage. The Congress government also sought input from district collectors throughout the state, and they informed the government that public opinion was against legal recognition of same-sex unions.

The Andhra Pradesh government, led by YS Jagan Mohan Reddy, recently informed the Union government that it sought the opinions of various religious leaders within the state after receiving a letter from the Centre on 18 April. All of the religious heads consulted by the government were reportedly against the notion of same-sex marriages being granted legal recognition.

The government put on record the responses of the Hindu, Muslim, and Christian religious leaders and ultimately concluded:  “After considering the above views, I am to inform that the state of Andhra Pradesh is against the same-sex marriage and/or persons belonging to LGBTQIA+ community,” stated their letter," as stated in their official letter.

“Further, it would be prudent to maintain that legislation is the prerogative of legislature, at Centre and in states, and the Courts may like to view the matter in accordance with core principles of our democratic structure. The Legislature reflects the collective wisdom of the nation and its citizens, and it solely possesses the power to enact a law governing human relationships,” stated the letter.

The letter was sent to the Centre by the Himanta Biswa Sarma-led government. It disclosed that the state opposed petitions advocating for legal recognition of same-sex marriages. The government also requested more time to communicate its perspective to the top court.

Mehta requested the bench to abstain from making any declaration -- either of acceptance of any right for same-sex couples or acceptance of the very relationship. The bench included Justices Kaul, Bhat, Kohli, and Narasimha.

S-G has stated that any ruling made by the apex court would be considered as a legal declaration according to Article 141 of the Indian Constitution and will have a binding effect on the entire country.

S-G also pointed out the potential repercussions of the ruling, such as if a priest refusing to solemnise a same-sex marriage, he could be dragged to a court for contempt. “Suppose a visa officer refuses to give a visa since the term used in regulation is ‘wife’. There can be many such instances. I ask myself will this court want to be flooded with contempt applications?” he asked.

The bench addressed him and stated that the key factor would be the layout of the declaration. It added that typically, a writ of mandamus (directive to perform legal duties), is issued, therefore, there can very well be a declaration on the “status of affairs” as they are.

Mehta argued that the consequences of a declaration cannot be predicted or regulated by the court, and as a result, the bench should not exercise its discretion to declare any rights.

“The Government of India is of the firm view that such a non-heterosexual ‘union’ has no legal recognition under any nomenclature though it is not prohibited. Mere permissibility to co-exist and stay together or absence of embargo, cannot be the ground for claiming right of any nature de hors legislative recognition,” S-G’s note stated.

It is anticipated that the bench will wrap up the hearing on the issue on Thursday and reserve its judgment on the matter.