Same-Sex Marriage: Constitutional Interpretations and Human Rights

On October 17, 2023, the Supreme Court of India refused to accord legal status to same-sex marriages in the country. Both the majority and minority opinions denied the provision. There was a consensus that validating same-sex marriages would be tantamount to judicial overreach, or legislation by the judiciary. Thus, such a monumental decision being taken by the judiciary would interfere with separation of powers, parliamentary supremacy, and democracy itself. The Supreme Court stated that the Parliament may enact appropriate laws for same-sex marriages if it wished to do so. This was the Apex Court’s official stand. However, it also raised important questions.

One such question was the debate between a moral judiciary and a rule-based and methodical one. Should the judiciary be open to transgress rules in favour of taking the morally “right” stand? Or in this specific case, should the judiciary be open to legislate if the matter was as important to protect the rights of individuals as same-sex marriage?

But before we can answer this question, there is a need to answer a deeper, more fundamental yet controversial question. And that is: is same-sex marriage morally right in the first place, if it goes against numerous religious beliefs? In a country like India, where different personal laws co-exist at the same time, what basis are we meant to use for something like this, which cuts across religious lines? Again, this issue reiterates the need for a Uniform Civil Code in India.

In my opinion, same-sex marriage is a matter of individual choice and freedom. Who one likes is individual to them, why must society as a whole have sanctions restricting some types of marriages? Human choice and individuality are paramount to any religious doctrine. Therefore, religious sentiments do not come into play here. If same-sex marriages offend your religious sentiments, do not marry the same-sex! However, there is no coherent basis for restricting the same for others, for they are dignified individuals with the right to choose. Assimilation of personal laws and the codification of rights for the homosexual community are important issues. However, all political parties in India continue to neglect the issue, quite selfishly, to continue playing vote bank politics.

And, I wish to ask them this question: if you, who are meant to be the representatives of the people, are willingly neglecting the rights of a community, are you not violating the responsibilities handed to you by the Constitution?

If you believe that homosexuality is unnatural, or abnormal, please remember that is your opinion. You are free to reiterate your opinion in an attempt to influence others. At the same time, the legal restrictions on same-sex marriage must be lifted. Individual choice is the most important feature of any democracy. It is only when an individual is allowed to make his own choices and take decisions can he live a complete life.

Same-sex marriages do not cause large-scale harm to society. It is for this reason that I believe, legally, there should be no curtailments on same-sex marriage. Individuals and communities are free to exert their influence to prevent same-sex marriages in society, but it must be allowed from a legal point of view. This is because one cannot use their religious affiliation as an excuse to deny a large section of people rights that are enjoyed by other communities.

Now, the second question: is it right for the Supreme Court to breach regulations pertaining to legislation through judgements and separation of powers when it comes to moral issues like the one in question?

There are certainly arguments for both yes and no. In my opinion, no, the Supreme Court must stick to the rules no matter what. While in this particular case, it may seem right to allow judicial legislation, one has to ask: who is deciding what’s moral and what is not? Allowing the transgression of rules for moral issues is a slippery slope that can lead to authoritarianism. Today, the judiciary may take the right call, and tomorrow it may justify tyranny as being morally sound to allow it. Besides, the judiciary is supposed to be the champion of protecting rights and ensuring that rules are followed. If it itself was open to breaking the rules when it wished to, there would be anarchy!

In other words, while same-sex marriage must be allowed in society, it is not the judiciary who should take that call. As in any democracy, it should be the people’s representatives, or the Parliament who enacts suitable laws to make the existing framework more representative and fair.

It is my belief that legal recognition for same-sex marriage through new laws will come to India soon, when enough of the younger, more open generation is of voting age. The vehement protests being heard around the country even today for legalisation of same-sex marriage are a sign of a society that is growing more aware of the need to place humans over anything else.

Note: I have taken the photographs/illustrations from internet. They belong to the author/photographer/designer of the original article/s.