There Should Be Public Debate, Our Affidavit Is Clear: Home Minister Amit Shah On Same-Sex Marriages

Union Home Minister Amit Shah on Saturday said that there should be public debate on same-sex marriages. 

Speaking at India Today's 'Karnataka Roundtable 2023' event in Bengaluru, Shah also said that the affidavit filed by the Union government in the Supreme Court is very clear of the government's position.

A five-judge Constitution bench of the Supreme Court is hearing a clutch of petitions seeking legal recognition of same-sex marriages. The Union government and the ruling Bharatiya Janata Party (BJP) have consistently opposed same-sex marriages in submissions in the court and in public statements. 

Shah on Friday also said that the Union government's affidavit makes it clear that it does not agree with the idea of same-sex marriages.

What did Amit Shah say?

When asked to comment on the ongoing hearing in the Supreme Court on same-sex marriages, Shah said the affidavit filed is very clear and it would not be appropriate for him to comment separately.  

He said, "The government has presented its view clearly in the form of the affidavit in the Supreme Court. I believe that the affidavit itself is very clear. Now that the Supreme Court is debating it, it does not make sense for me to comment on it as a Cabinet minister."

Shah also said that the Union government has stated that it does not agree with the idea of same-sex marriages.

He said, "Our Law Officer will present the government's side in the court and has done so as well which is public. The comments of the Supreme Court are public and the demands are also public. Let us see what the Supreme Court does, but we have presented our side through our affidavit that we don't agree with this."

Shah also said that there should be public debate on the subject. 

"There should be extensive and public debate on this because it is a great change. We also said that Parliament and state assemblies should consider this," said Shah.

What has Centre said in Supreme Court?

The Supreme Court began hearing pleas seeking legal recognition of same-sex marriages on Tuesday. While pleas were filed seeking recognition under personal law Hindu Marriage Act (HMA) and the secular law Special Marriage Act (SMA), the apex court only considered the pleas concerning the SMA.

For over a year, the Centre has consistently opposed the same-sex marriages in the Supreme Court. It has said that such recognition would create "havoc" in the society. Recently, it called the idea of same-sex marriages an "urban elitist" view.

Earlier, both the Centre and BJP have opposed the recognition of same-sex marriages.

The BJP-led Union government has repeatedly challenged any recognition of same-sex marriages, saying that it's not legitimised and recognising it would create havoc in Indian society.

In February 2021, the Centre said marriage is only between a man and a woman and that interference in current marriage laws "would cause havoc" in society, according to India Today. The Centre further said that same-sex marriage cannot be a fundamental right.

"Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the Petitioners cannot claim a fundamental right for same-sex marriage...[Decriminalisation of homosexuality] applies to aspects which would be covered within the personal private domain of individuals [akin to the right to privacy] and cannot include the public right in the nature of recognition of same-sex marriage and thereby legitimizing a particular human conduct," said the Centre, as per India Today.

In December 2022, BJP leader Sushil Modi termed the campaign for same-sex marriage recognition a "left-liberal" ploy to change "ethos of India". He also questioned the role of the Judiciary in the matter.

"Two judges can't decide on such an important social issue, which warrants a debate in Parliament and in society at large. Some left-liberals and activists are making efforts to change the ethos of the country. I urge the government to strongly argue against same-sex marriage in court," said Modi at the time.

In February, the Centre in an affidavit in the Supreme Court said that while same-sex unions or non-heterosexual marriages are not unlawful, there is no recognition either and there is no legitimacy despite the decriminalisation of homosexuality in 2018. 

The Centre also said the fundamental right to life and liberty cannot include any implicit approval of same-sex marriage. 

The Centre added that following a Supreme Court verdict in 2018, the only change is that persons of the same sex can engage in consensual sexual intercourse without being held criminally liable under Section 377 of the Indian Penal Code.

Referring to the 2018 verdict, the government said that the dictum of it does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of the same gender in contravention of prevailing statutory laws.

It said the observations in the 2018 verdict cannot be treated as conferring a fundamental right of being recognised in marriage under Indian personal laws whether codified or otherwise.

(With PTI inputs)