Same-sex marriage case: Central government files fresh affidavit to make States and UTs parties to case

The Central government on Tuesday filed a fresh affidavit before the Supreme Court in the same sex marriage case seeking directions to add all States and Union Territories as parties to the case..The affidavit filed by Joint Secretary and Legislative Counsel, KR Saji Kumar said that present case involves legislative rights of the States under the seventh schedule of the Constitution and the rights of the residents of the States. "It is clear that the rights of the States, especially the right to the legislate on the subject, will be affected by any decision on the subject. It is submitted that further, various States have already legislated on the subject through delegated legislations, therefore making them a necessary and proper party to be heard in the present case," the affidavit said.Hence, any decision on the present issues without making States a party and without specifically obtaining their opinion on the present issue, would render the present adversarial exercise incomplete and truncated, the government said.Specifically with regard to the rights of the States, the affidavit highlighted entry 5 of the concurrent list in the seventh schedule."The framers of the Constitution have specifically provided for a separate entry (entry 5) in the concurrent list which is a part of the seventh schedule of the Constitution of India conferring a constitutional function of legislating with respect to this institution of “marriage”, the requisite conditions for a valid marriage, regulations of such institutions like making provisions for divorce, alimony etc," the affidavit pointed out.Entry 5 read as follows:"5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”Every component of Entry 5 above is intrinsically interrelated and any change in any one will necessarily have an inevitable cascading effect on other, the government contended.."It is submitted that the said issue goes to the root of the present matter and has far reaching implications. It is therefore humbly requested that all States and Union Territories be made a party to the present proceedings and their respective stance be taken on record and in the alternative, allow the Union of India, to finish the consultative process with the States, obtains their views/apprehensions, compile the same and place it on record before this Hon’ble Court, and only thereafter adjudicate on the present issue," the affidavit said. .A Constitution Bench of the Supreme Court is currently hearing a batch of pleas seeking legal recognition of same-sex marriages in India.The bench is led by Chief Justice of India DY Chandrachud and also comprises Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli.Yesterday, the hearing began on a heated note with the government saying that it will re-examine whether to participate in the proceedings or not.During the hearing, the Supreme Court remarked that the notion and definition of gender is not limited to a person's genitals.The batch of petitions have sought the recognition of same-sex marriages under law, arguing that the right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well.The Central government has opposed the petitions filed before the Supreme Court by gay couples.In an affidavit filed before the top court, the Central government said that living together as partners and having sexual relationship by same sex individuals is not comparable to the Indian family unit concept which involves biological man and biological woman with children born out of such wedlock.The Centre has also filed an application asking the Court to first decide on the maintainability of the petitions.Similar views have been expressed by Islamic religious body Jamiat-Ulama-I-Hind, which has said that notions like same sex marriage originate from western culture that have radical atheistic worldviews and the same should not be imposed on India.The National Commission for Protection of Child Rights (NCPCR) has opposed conferral of adoption rights on same-sex couples, relying on a study which shows that such a child gets affected both socially and psychologically.However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners, and said adoption and succession rights must be conferred on same-sex couples..Read live updates from today's hearing here.