Centre says court can’t rewrite fundamental of law, matter should leave to Parliament

The court can neither rewrite nor alter provisions and the very fundamental architecture of a law as conceived at the time of its framing even by reading something into it, the Centre told the Supreme Court on Wednesday while arguing pleas on same-sex marriage.
It asserted that the legislature alone can deal with the issues raised in the pleas. In his written submissions, Solicitor General Tushar Mehta, representing the Centre, said the impact of the socio-legal recognition of same-sex relationships as “marriage” on the society as a whole has to be kept in mind before any decision is taken in the matter.“The matter cannot be just viewed as an individualistic constitutional pursuit, and the larger interests of human society and Indian society need to be appreciated in this regard,” he said.
Mehta said it is only the legislature which can, in its wisdom after gathering all details, taking several factors into consideration and as per the emerging legislative policy, conceive of a comprehensive piece of legislation for all LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) persons.
A five-judge Constitution bench comprising Chief Justice D Y Chandrachud and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha continued hearing arguments in the matter for the fifth day on Wednesday.
Mehta said in his written submissions that the matter represents a “profound anthropological and social question” concerning prayers made by the petitioners seeking creation of a new socio-legal status and institution of “marriage” for the class of persons for which no such legal status exists under the statutory mechanism in place.
He said the “heart” of the Special Marriage Act, 1954, is to provide a legislative framework for inter-faith marriages but doubtlessly between heterosexual couples.
“The court will have to examine the entire architecture of the Act rather than to examine few words like ‘husband’, ‘wife’, etc.
The prayer to declare the said Act unconstitutional merely because it recognizes only heterosexual marriages, therefore, must fail,” he said.
“The court can neither rewrite the provisions nor can alter the very fundamental architecture of an Act as conceived by the legislature at the time of framing of the Act even by reading something which was consciously omitted at the time of enactment,” Mehta said.
In his written submissions, he said the socio-legal recognition to “same-sex relationships” in particular and all shades of LGBTQIA+ in general has a very nascent history which started in 2001 in the Netherlands.
The solicitor general said this movement for socio-legal recognition to same-sex relationships need to put into perspective that it has roughly been 20 years since this “experiment” began in a particular part of the world in contradistinction to the unbroken line of continuity of opposite-sex marriage in human civilisation since time immemorial.
“The tall claims of ‘scientific evidence’, especially with regard to the impact of socio-legal recognition to non-heterosexual relationships as ‘marriage’, considering the nascent history of the same, require far more evidence, material and time before any sweeping claims can be made or accepted,” he said.
Mehta said the protection and preservation of fundamental rights of LGBTQIA+ community is not in dispute and in fact, this is fully protected by Parliament itself by making the Transgender Persons (Protection of Rights) Act, 2019.
“The question really is whether to confer socio-legal status of ‘marriage’ or any other name to such a relationship. This is essentially is a question based upon the legislative policy,” he said.
“The court can adjudicate an enactment and protect fundamental rights but will not have the jurisdiction to create a new socio-legal institution between two or more human beings clearly not contemplated by any legislation,” Mehta said.
He said in the countries where same-sex marriages are recognised are so recognised by law by their respective legislatures and such legislations have, simultaneously, amended other incidental provisions in various other Acts.
“Such an exercise can be conducted only by the legislature,” he said. “The real question is who would take a call on what constitutes marriage and between whom,” Mehta said.
Mehta had said the subject with which the top court is dealing is virtually the creation of a socio-legal relationship of marriage which would be the domain of the competent legislature.