Same-sex marriage hearings began in the Supreme Court on Tuesday, while on Monday the Central government urged the Supreme Court that petitions requesting recognition of same-sex marriages affect urban elitist views and that recognition of marriage is mandatory. There is a legislative function on which the court should refrain from passing judgment.
In fact, a few days ago, the Supreme Court had removed homosexual relations from the category of crime, even then there was a lot of controversy, but the bench headed by the Chief Justice rejected the request of the government and started the hearing and appealed to give legal recognition to gay marriages. While deciding the petitions, he would not consider personal law related to marriage and asked the lawyers to present arguments on the Special Marriage Act.
In fact, the Special Marriage Act 1954 is a law that provides a legal framework for marriages between people of different religions or castes. It governs a civil marriage where the state rather than religion sanctions the marriage.
The truth is that marriage is a social legal institution which can be created, recognized, given legal validity and enacted only by the competent legislature through an Act under Article 246 of the Constitution Is. In fact, in the decision given by the Supreme Court in the case of Kesavananda Bharti vs. State of Kerala, it was clearly said that whatever changes can happen, the fundamental nature of the Constitution cannot be changed.
Now on the same decision, the government sits on Article 368 that the court cannot change the basic form of the constitution and the Supreme Court sits on the basis of Article 13 that the government cannot change the basic form of the constitution. Both are considered competent to make laws and improve them. These two articles are the real root of the dispute.
The surprising thing is that on such an important subject, the Supreme Court did not even consider it appropriate to give notice to the states. Even if the Supreme Court gives recognition to same-sex marriage, it is not guaranteed that the central and state governments will not come forward to stop the possible social stench.
If the Supreme Court gives recognition to gay marriage, then not only the definition of rape, but also many legal provisions will have to be changed.
The truth is that the Supreme Court may give recognition to homosexuality, but it is very difficult to get social recognition because no matter what the religion is in the Indian society, it cannot accept homosexuality.
If homosexuals want recognition of same-sex marriage considering it as their right, then it increases the possibility of spreading such a belief in the society that there is deviant behavior under the guise of rules and regulations.
Even if the government accepts the authority of Parliament and Legislatures to give legal status to marriage and the Supreme Court remains adamant that it is omnipotent, therefore it can do anything. But the truth is that if the acceptance of marriage comes from inside the society, then it is absolutely appropriate. (sp)
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