The constitutional court is upon to decide yet another complex issue- same-sex marriage. After Navtej Johar Case(AIR 2018SC 4321) a section of the society, particularly the neo-liberals, have been demanding recognition of same-sex marriage as part of personal liberty guaranteed under Article 21 of the Constitution of India. The Apex Court is now going to decide whether same-sex marriage is within the constitutional framework and also in the institutional structure of matrimony ingrained by religious scriptures.

The propriety of this sensitive issue being adjudicated by the constitutional court, particularly when the institution of marriage itself has the foundation in sacraments, turns out debatable. Marriage is essentially a union of hetero sex; man and woman in legitimized sexual relationship for procreation of children and the sustenance of posterity. Recreation is only a concomitant of the institution of marriage. For the homosexual and gay, the pairing in matrimony can only be a civil union for sharing and caring for mutual derivation of happiness without the solemn duty of procreation of progeny. Any reform attempted on the social structure of matrimony, a fundamentally heterosexual union, is basically an issue for individuals concerned to decide. Interpretational intervention has no effective role in the process.

The issue is one touching purely personal liberty; its meaning and sweep are to be judged by each person and not by collective institutionalized adjudicatory bodies. The choice of the individual must be reflected by way of a ‘yes’ or ‘no’ answer- the holding of a Referendum. The basic unit, the individual in the social fabric, has to give his assent or dissent to the issue of ‘same-sex civil union’ or ‘same-sex marriage’. The question is now on the propriety of holding a nationwide Referendum instead of going for an adjudicatory process.

Same-Sex Marriage-Global Scenario

The libertarian thought process and its impact in the western countries has led to widespread clamour for legitimization and legal recognition of same-sex marriage. The demands found favour with many of the countries in the western world. As many as 34 countries have legitimized the institution of same-sex union as legal marriage for all purposes, particularly for deciding civil rights between parties.

The process in these countries was done through Referendum or by legislation. Australia, New Zealand, Argentina, Denmark, Switzerland, U.K, Belgium,France, Canada, South Africa and Spain, all witnessed the neoliberal sensation of same-sex marriage institutionalized in legislations. But the countries which had gone for Referendum for recognizing this right showed little deference to the liberals’ demand for legitimization of same-sex marriage.

In the recently held Referendum in Russia, the same-sex marriage demand was out rightly rejected by the overwhelming majority of Russian citizens. In 2013, Croatia saw a Referendum to decide on the legal recognition of same-sex marriage. Croatia also decided against same-sex marriage. Bermuda and a few other countries followed the course. But Switzerland, Ireland and Australia approved same-sex marriage in a Referendum followed by legislation, thus joining the league of many other western nations. Recently in 2022, Cuba became the last one to join the same-sex marriage wagon by a nationwide opinion poll.

The holding of a Referendum, when permitted under the Constitutions of a country, appears to be a desirable and acceptable course for deciding fundamental questions affecting human liberty and existence. The issues of crucial importance which may have a catastrophic effect on the existence of humanity can be determined safely and legitimately by a Referendum instead of a revolutionary adjudication. What may stand in the way of holding a Referendum may be the want of constitutional sanction for undertaking such an exercise in the existing framework of the country. Our Constitution does not recognize holding of a Referendum for deciding fundamental policy issues or the like.

Obergefell v Hodges 576 U.S 644 (2015)

Judicial recognition is the source of sanction for same-sex marriage in the U.S.The declaration of Federal laws banning same-sex marriage as a violation of the Due Process Clause by the U.S. Supreme Court made the event lawful in the United States. In Austria, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Slovenia, South Africa and Taiwan judicial intervention happened like in the U.S., which gave legal recognition for same-sex union.

Constituent Assembly Debates

When the question of choice of national language was debated in the Constituent Assembly some of the members demanded a Referendum on the issue. But the proceedings of the Constituent Assembly debates indicate that there were no serious takers for the request for a Referendum to be held on the issue of national language. But during the debates, one member of the Constituent Assembly, Brajeswar Prasad (CAD,17th September, 1949) made a fervent plea for acceptance of Referendum in the Constitution as a tool for its amendment, particularly when fundamental questions of policy are sought to be resolved or reversed. A logically founded argument was raised by Brajeswar Prasad for accepting Referendum as a device for the amendment to the Constitution. Taking part in the Constituent Assembly debates, Mr.Brijeswar Prasad said:-

“Sir, I am in favour of a referendum, because of referendum has many advantages. Referendum is democratic as it is only an appeal to the people, and no democratic government can have any objection to resorting to referendum in order to resolve a deadlock, when there is a conflict between Parliament and provincial governments. Secondly, I am in favour of referendum because it cures patent defects in party governments. People think that it is too radical a weapon and that a conservative people like ourselves ought not to use it without proper consideration and thought. It is conservative since it ensures the maintenance of any law or institution which the majority, of the electors effectively wish to, preserve. Therefore, it cannot be a radical weapon. Thirdly, sir, referendum is a clear recognition of the sovereignty of the people. Fourthly, it would be, a strong weapon for curbing the absolutism of a party possessed of a parliamentary majority.” (CAD, 17 September, 1949)

The desirability of holding a Referendum for making fundamental changes in the Constitution was mentioned, though not accepted, in the famous KeshavanandaBharati case in the separate opinion of Justice Dwivedi (Para 1784).

Referendum in Post Independent Era

True that the proposal for Referendum as a means for amendment of the Constitution was rejected, still then the reflection of democratic wishes on important policy was sought to be elicited through a Referendum in the post-independent era. In 1946, when the accession of Chandernagore to the territory of India arose in the country, a Referendum was held for deciding the wishes of the people of Chandernagore for its choice on accession to India by severance of its sovereignty with France. Two years later, the accession of Junagadh to the Territory of India came to the fore. The people of the princely State were divided over preference to Pakistan or India which subsequently was resolved by holding a Referendum wherein the majority agreed for acceding to the territory of India. When Goa, Daman and Diu went into a battle of preference over the choice of remaining as a Union Territory or merging with the State of Maharashtra or Gujarat,a Referendum was resorted to as a mode for perceiving the attitude of people. As the Constitution did not sanction for Referendum, a Parliamentary legislation as Goa, Daman and Diu (Opinion Polls Act 1966) was passed to give legality to the holding of a Referendum. The people of Goa, Daman and Diu opted to remain as a Union Territory. The latest in the line of holding of Referendum was in the matter of the accession of Sikkim in 1975 which also went into litigation on its legality.

The legal sustainability of holding a Referendum for ascertaining the wishes of the electorate or the citizenry was accepted by judicial verdict. In 2009, a demand of the people of Udamnagar to join with Uttaranchal, through a Referendum, was put to legal scrutiny. The discussions during the framing of the Constitution and also the experience witnessed in the post-independent era would give some sort of inspiration and legitimacy for holding a Referendum for ascertaining the wishes of people on subjects which are very fundamental to their existence, likes and dislikes.

On the issue of same-sex marriage, if the Government of India makes a request to the Apex court that it intends to hold a Referendum on the issue, it would turn out to be a creative resolution of the confounding constitutional issue seized of by the Apex court. It will provide a platform for the people of India to engage in creative discussions and deliberations where an informed choice could be taken. The ascertainment of the public wish on a fundamental question of existence of humanity is an essential measure to be followed by a democratically elected Government.

44th Amendment and Referendum

The most draconian amendment to the Constitution was the 42nd amendment. The infamous Emergency and its continued life depended mostly on the 42nd Amendment. After the Emergency, when Janata Party Government came to power, the then Law Minister Shanti Bhushan piloted the 44th Amendment of the Constitution which in fact had effaced and undone all the anti-democratic and anti-constitutional escapades of the Emergency. By the 44th amendment, Shanti Bhushan wanted to bring in an amendment to the Constitution which provided for Referendum as means for altering constitutional provisions when it touch basic features like secularism, democracy, fundamental rights, free and fair elections, independence of judiciary etc. The said clause was defeated in the Rajya Sabha which sent it back to the Lok Sabha with the changes it mooted.

Thus, the endeavour to make Referendum a means for amendment of the Constitution failed, which if passed, would have certainly changed the free and pure flow of democratic wishes of the people of India into the governing document of the country. The sovereignty which actually lies with the people of India could have been manifested more emphatically if they themselves had undertaken the exercise of Referendum for vital amendment of their Constitution; which they only had given unto themselves on the 26th day of November, 1949. But fate favoured the other course which made the three organs make themselves more autocratic by arrogating power to themselves on days of one’s might.

The sovereign power to amend the Constitution is better laid with the citizenry by making suitable provisions in the Constitution, like holding Referendum on seminal issues like fundamental rights, secularism and the areas where a lacunae is felt in the Constitution. The idea of a Referendum is not something alien to the Constitution or to the framers of the Constitution, but was a thing that was conveniently laid to rest which enabled each mighty organ to aggrandize the sovereign power fortuitously to themselves when the occasion arose - no matter, be it executive, judiciary or legislature.

Conclusion

Man is born free with absolute freedom. Absolute freedom led to anarchy and promiscuity. It was mankind’s wish which then led to the formation of the State and the process of anointing a Sovereign. Through SOCIAL CONTRACT, man surrendered absoluteness of his freedoms to a Sovereign in reciprocity of a collective secured societal life. Individual rights merged with collective rights and correlative duties, thus ensuring a colourful commune life. Individual fades into ocean of collectivity. As Jeremy Bentham said; every law is an evil, for every law is an infraction of liberty; choose the lesser evil; the greatest happiness of the greatest number decides the utilitarianism of law. Viewed thus, Referendum shows the will of the Collectivity. Referendum is the real desideratum in the march of constitutional reform process in India. A Referendum followed by a legislation is the ideal solution to the same-sex marriage enigma.

The Author is an Advocate practicing in the High Court of Kerala.

[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.]

Same Sex MarriageReferendumConstitution BenchSupreme Court

S.Sanal Kumar