Consulting with States and UTs on same sex-marriage issue: Centre urges SC to stay its hands till it’s complete

In the fresh affidavit, the Centre said since the matter is one that affects the rights of states, it had urged the top court to hear them.

The Centre said “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”.

The Centre said, “Therefore, it is clear that the rights of the States, especially the right to legislate on the subject, will be affected by any decision on the subject”. It 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” but were not.

It said, “Any decision on the present issues without making States a party, without specifically obtaining their opinion…would render the present adversarial exercise incomplete and truncated”.

Pointing out that in light of this, the court was requested on April 18 to make States a party to the present litigation and invite their respective views, but “despite the said constitutional, jurisprudentially and logically fair request being made, this Hon’ble Court is not pleased to rule upon the same”.

The affidavit said that with the court not issuing notice to the States and UTs, the Centre “has started the exercise of consultation with all the States, in order to ascertain the views of the States on the said issue”. The Centre, it pointed out, “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 petitions”.

The government submitted, “the said issue goes to the root of the present matter and has far-reaching implications” and “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” the court “ and only thereafter adjudicate on the present issue”.