The Centre on Wednesday told the Supreme Court that it has invited suggestions from all states on legalising same-sex marriage and urged the five-judge Constitution bench to implead them in the matter.

The government said that without such a consultative exercise, the process would be “truncated” as “the said issue goes to the root of the present matter and has far-reaching implications”.

The government wanted the court to either allow the consultative process with the states to reach a finality and thereafter consider the views, or implead the states in the hearing.

A five-judge Constitution bench headed by Chief Justice D.Y. Chandrachud on Tuesday began hearing a batch of petitions and counter-petitions on the plea for recognising same-sex marriage. The Centre, represented by solicitor-general Tushar Mehta, objected, saying either Parliament should take a call or the states should also be impleaded in the matter.

On Wednesday, the government moved a formal affidavit insisting that the states must be heard as matters such as marriage, divorce and adoption are in the realm of the Concurrent List of theConstitution that empowers the states to legislate onthem.

“Any decision on the present issues without making States a party, without specifically obtaining their opinion on the present issue, would render the present adversarial exercise incomplete and truncated. It is submitted that in light of the above, a prayer was made before this Hon’ble Court to make all States a party to the present litigation and invite their respective stands on the said issue during the hearing on 18.04.2023,” the Centre said in the affidavit.

“...The Union of India reiterates its request to join all States and Union Territories as a party to the present case, invite the views of the various States on the present issue, which clearly falls within their legislative domain and only thereafter, proceed to decide the question before the Hon’ble Court.

“It is submitted that further, the Union of India, in the absence of a notice to the States and Union Territories on the present issues, has started the exercise of consultation with all the States.... It is submitted that the Union of India has issued a letter dated 18.04.2023 to all States inviting comments and views on the seminal issue raised in the present batch of petitions.”

According to the Centre, even if the issue was limited to the interpretation of the Special Marriage Act, 1954, it “entails the purported judicial creation of a social institution called ‘marriage’ of a different kind than contemplated under the existing law”.

The Centre pointed to Entry 5 on the Concurrent List in the Seventh Schedule that reads: “List III — Concurrent List — 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.”

The Centre said: “It is submitted that every component of Entry 5... is intrinsically interrelated and any change in any one will necessarily have an inevitable cascading effect on the others. 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.”