Marriage equality petitions: Union government seeks that all states and Union territories be made parties

Not making all states and Union territories a party and obtaining their opinion on the legal and constitutional recognition of marriage equality would have an adversarial impact, the fresh affidavit of the Union government states. 

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THE Union government has filed a fresh affidavit seeking participation or consultation of all states and Union territories as necessary and proper parties in the marriage equality case.

This comes subsequent to the unsuccesful attempt by the Union government, led by Solicitor General of India Tushar Mehta, to raise preliminary objections to the hearing of the batch of petitions seeking recognition of marriage equality by a Constitution Bench of the Supreme Court on the first day of hearing yesterday.

According to the affidavit, it is the "bounded duty of the petitioners" to make all states a party to the present litigation as their legislative rights under Entry 5 of the Seventh Schedule of the Constitution are hit by the hearing.

Entry 5 reads: "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." 

"[E]very component of Entry 5 above is intrinsically interrelated and any change in any one will necessarily have an inevitable cascading effect on other," the affidavit notes.

The Supreme Court Constitution Bench, headed by Chief Justice of India Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, has begun hearing around 20 petitions in Supriyo@Supriya Chakraborty & Anr. versus Union of India, which also challenge the constitutional validity of the  Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 for defining marriage through a gendered lens.

In yesterday's hearing, the court limited the canvas of the issues to consider whether gender-neutral situations can be accommodated in the Special Marriage Act.

As per the affidavit, the Constitution specially provided for Entry 5 under the Concurrent List in the Seventh Schedule, which confers the constitutional function of legislating with respect to the institution of marriage, the requisite conditions for a valid marriage, the regulations for such institutions and making provisions for divorce, alimony, etc. on both the Parliament and state legislatures.

"It is submitted that, 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 is submitted that further, various states have already legislated on the subject through delegated legislation, therefore making them a necessary and proper party to be heard in the present case," the affidavit notes.

In yesterday's hearing, Mehta told the court that the petitions will not be maintainable if the views of the states and Union territories are not sought. The Union government raised the same issue in its written preliminary objections wherein it stated that the creation of a new socio-legal institution is the sole prerogative of the legislature. However, the court  refused to implead states as parties yesterday.

The affidavit concludes by stating, "It is submitted that further, 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 states, in order to ascertain the views of the states on the said issue."