The Union government on Wednesday sought time from the Supreme Court to hold a consultative process with States and Union Territories (UTs) and obtain their views to put it on record for adjudication of the issue of same-sex marriage.
In its renewed request, the government asked the court to add all States and Union Territories (UTs) as parties in the ongoing hearing on petitions seeking legal sanction to same-sex marriage as the subject fell in their legislative domain.
"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 of same sex marriage," it said.
"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 fresh affidavit by the Centre stated.
The government said in such a matter wherein legislative rights of the States under the Seventh Schedule and the rights of the residents of the States are clearly in question, it was the bounden duty of the petitioners to make all States a party to the present litigation.
"The Union hovt has issued a letter dated 18.04.2023 to all States inviting comments and views on the seminal issue raised in the present batch of petition," the government pointed out.
The affidavit also said the present matter and issue delineated by this court, even when limited to the Special Marriage Act, 1954, entailed the purported judicial creation of a social institution called "marriage" of a different kind than contemplated under the existing law.
"The framers of the Constitution have specifically provided for a separate Entry 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," it said.
"The Union of India, in the absence of notice to the States and Union Territories on the present issues, has started the exercise of consultation with all the states, in order to ascertain the views of the states on the said issue," it further stated.
The Centre stressed that the said issue goes to the root of the present matter and has far reaching implications.
"All states and Union Territories should 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 government said.
The affidavit submitted that any decision on the present issues without making states a party, without specifically obtaining their opinion on the present issue, would render the present adversarial exercise incomplete and truncated.
A five-judge bench led by Chief Justice of India D Y Chandrachud is hearing the plea for granting legal sanction to same sex marriage.