The Indian government has asked the Supreme Court to let Parliament decide on legalizing same-sex marriage, arguing that it is a complex issue with significant social impact. The Centre said the process would require examining 160 different laws and would be a “humongous exercise” even for Parliament. They argued that the judiciary is not empowered to do so. The government submitted that the question of what constitutes marriage and between whom should be decided by Parliament, civil society groups, and state legislatures.
The Solicitor General argued that marriage is a socio-legal institution and its recognition is a matter of legislative policy decisions. He also pointed out that, while marriage is a personal affair, legislatures intervene to decide various modalities such as age and grounds of divorce. The Supreme Court observed that judges do not legislate and expressed reservations about citing a verdict of the US Supreme Court to support the argument against judiciary intervention.
The Centre urged the five-judge Constitution bench not to grant same-sex couples the right to marry, stressing the need for broader societal debate on the issue. The bench included Chief Justice D Y Chandrachud, justices S K Kaul, S R Bhat, Hima Kohli, and P S Narasimha.
