Same Sex Marriage: Judicial Pronouncement Without Engagement, Education And Sensitization Will Backfire

The Supreme Court is hearing the case seeking legal validation of same-sex marriages before a five-judge constitutional bench for adjudication. A bench headed by Chief Justice D.Y. Chandrachud has called it a seminal issue, saying the submissions on the matter involve an interplay between constitutional rights on the one hand and special legislative enactments, including the Special Marriage Act, on the other. The centre has opposed in the top court the batch of petitions seeking legal validation of same-sex marriages, claiming that they will cause complete havoc with the delicate balance of personal laws and accepted societal values. So further arguments on the matter will now be heard and proceedings will be live-streamed, as in the case of hearings before the Constitution Bench. What the Supreme Court's pronouncement will be is something we will have to wait for.

In fact, the petition is being considered by the Supreme Court under Article 142. Article 142 states unequivocally that the Supreme Court can hear anything that falls within its jurisdiction. The second part of the argument is that any order is subject to the law passed by the legislature. These are two very important conditions under 142 and therefore the stand of the central government is that this legislation or making of the law on this subject belongs to the legislative domain. Because it has grave consequences for society, what will be its reaction?

So, once it is taken to the parliament, the parliamentarians who represent the people who have been elected will consider what the views of the public are. It is not the Supreme Court that would legislate on the matter, because if the Supreme Court started making laws, that would be the end of democracy. They are there to fill in the gaps or interpret the laws.

Government and Parliament are two different things; government is the executive, and Parliament is the legislative domain. They may have been silent, but that does not necessarily mean they should be silent on this issue as well. Marriage is a societal concept, so society comes into the picture. Once the society comes into the picture, the consequences, relevance, and implications of the society, whether they are there or not, must be discussed in Parliament.

I respectfully disagree with the entire paradigm of homosexual marriages. There are scientific inhibitions, there are academic questions or points of view that need to be debated. But one thing I believe everyone will agree on is that we should all say no to homophobia. I totally respect their position, but having said that, for example, there are scientific apprehensions like, have we discovered gay genes? Is it natural? Is it by birth? There are a lot of such scientific questions that need to be debated. Scientists like Simon LeVay, who himself belongs to the gay community, have studied the topic deeply and have stated that he has not discovered any gay genes till date.

For centuries, marriage has been a heterosexual, monogamous marriage relationship and is a more prominent form of procreation and family, so naturally, there are many people who will have inhibitions and reservations regarding the same. So, the way forward is more discussion and sensitization. Let lawmakers, people's representatives and everyone else debate and discuss it more and more. A larger discussion is warranted because, at the end of the day, more important than legal acceptance is social acceptance.

The legislation is always made by the parliamentarians, once there is demand from the people, then parliamentarians are bound to take up that call because parliament reflects the will of the people. The parliament is not making that call, which means there is not sufficient social acceptance or social pressure on them. The social demand must be there before the law comes into the picture; it is not the other way around. We are living in a parliamentary democracy and irrespective of the political parties, parliamentarians represent the will of the people.

Remember the Jallikattu judgment delivered by the Supreme Court? People did not accept it. Thereafter, legislation was introduced by the state government. If you make a law that is ahead of its time, people either will not implement it or there will be issues and problems in society. Yes, there may be a few acceptances here and there, but overall, if you look at society, it must make a call through their parliamentarians and through the mass movements. So first create mass awareness about it; this is a larger call in which all implications, consequences and everything else must be discussed, which the Supreme Court is not competent to do. The legislature and parliamentarians are competent to legislate because it is within their exclusive domain.

Ordinary people would need more engagement, education and sensitization from the community in a broader sense. The government must carry the will of the people; we cannot blame the government for carrying the will of a huge section of people and the government is rightfully raising apprehension. Even in foreign nations, there are apprehensions raised about same-sex marriage, but we all agree on the principle that homophobia is bad and discrimination is bad. The community should go on with a very soft educational or sensitizing vision in a much larger way.

As of now, the law does not permit same-sex marriages, the reason being that under the Hindu law, the Muslim law and the Christian law, they are prohibited. Marriage is social, which has social implications. What you do within your room, the government is not going to peep inside, but the movement around the concept of marriage becomes a social issue. Let me also point out that same-sex marriage is not an Indian civilizational concept; it is a concept that comes from outside. We have eight forms of marriage in Indian civilization; none talks about same-sex marriage. So, we have our own traditions that are sipped in our society and the law that is made comes through the customs that have been followed through the ages. Is the present concept and demand so great as to compel the parliament to make a law in favour of such an issue? This must be debated.

There was social pressure to change things like Sati and we have evolved from it. Great campaigners like Raja Ram Mohan Rai, who was one of the greatest reformists, Swami Vivekananda, Mahatma Gandhi, Guruji Golwalkar, Veer Savarkar and so many others took an active role in the reforms, but all these were legislative reforms. When the issue of same-sex marriage, which has a totally different connotation in society, arises, there are a lot of consequential questions that arise. One regarding divorce, under which law are they going to get married and under which law are they going to get divorced? What about inheritance? What about adoption? All other angles also arise and need much more deliberation from the lawmakers. This is a very legitimate position that the government has taken.

India is not just a few metropolitan cities; India is too vast. The entire population is a part of our democratic process and they are the ones who send people to the parliament. The Supreme Court can make a law, but legislative powers are not their domain; the change must begin in society. Inspite of the Supreme Court making laws, Sabrimala and Jallikattu are examples that show that they were not implemented on the ground. Let there be a pace at which the law must be developed naturally, not imposed. The will and wishes of the parliament cannot be bypassed; there needs to be consensus. Every great change may take time, but you must convince and convey.

Let us not forget that it is the parliament that makes the laws and if the will of the people is not reflected in parliament, the parliament refrains from that. So perhaps it is too early to accept that kind of change. There will be a social reaction to that kind of change if it happens and it should not disturb the social fabric until and unless there is wide acceptance from society. 

Author is an Advocate practicing in the High Court of Bombay.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]