The shadow of rights’ jurisprudence in India has been expanding for a few decades. Extended readings of Articles 14, 19, and 21 reshape the values judges use in constitutional interpretation. Such a mode of reading the Constitutional provisions impacts the democratic approach to solving and resolving contentious issues. The question of same-sex marriage is equally of vital importance. However, the solution depends on democratic acceptance by the people.

Same-Sex Marriage: Contentions before the Supreme Court

In recent months, many arguments have been advanced in favour and against the concept of same-sex marriage. The Supreme Court has also made some interesting observations. As far as legality is concerned, all personal laws in India, including the Special Marriage Act, 1954, have defined marriage as a union of two opposite sexes.

Also Read: Same-Sex Marriage Verdict Live Updates: Supreme Court’s judgment on marriage equality case shortly

The main contentions of petitioners are that the non-recognition of same-sex marriage creates hardships in the matters of property, inheritance, succession, adoption, taxation, and insurance benefits. They have argued to make the concept of marriage gender-neutral. The petitioners have also resorted to the principles of the right to equality, liberty, and autonomy enshrined under Articles 14, 19, and 21 for establishing the legal claims of sexual minorities.

The Government of India has contended that reading the black letter of law otherwise than what was intended by the legislature would amount to the violation of the separation of powers because such interpretation would be nothing less than legislation. Therefore, the Parliament of India is the appropriate authority to decide on same-sex marriage. It has also taken the cultural argument to state that Indian civilization never conceived the concept of marriage in a homosexual sense.

Indian Civilization and Acceptance of Same-Sex Relationship

Indian civilization has been liberal in accepting the same-sex relationship. The available literature and sculptures demonstrate a profound understanding of sexuality in the ethos of ancient and medieval Indian societies. Kama was one of the chief means to live a happy life in Grihastha Ashram.

Also Read: Same-sex marriage: What is the Special Marriage Act cited by Supreme Court?

Michel Foucault, a French Philosopher, neologized the concept of sexuality in oriental life as ars erotica (Art of Sex). Same-sex relationship was not taboo until the British brought the dichotomy of natural-unnatural, and consequently, the Indian Penal Code, 1860, recognised and legitimised the restrictive view of sexual relationship. However, same-sex marriage had never existed either in theory or practice in India. Though, such relationships had acceptance in Indian societies.

The Supreme Court in the judgment of Navtej Singh Johar (2018) recognized and accepted such relationships on the ground of constitutional principles. The judgment is a remarkable achievement for the protection of the right to desire of sexual minorities. Yet any attempt to extend that right to include the concept of marriage requires extensive deliberations.

The Indian Supreme Court has passed many judgments since Independence on several morally contentious issues. A recent example is the decision in Sabarimala case. However, such decisions could not have been practically implemented for lack of awareness among the masses or indifference on the part of state machinery. But the most cogent reason appears to be its legal rationality. Democracy as an institution can flourish through public reason exercised by people to develop an inter-subjective understanding of certain choices.

Making and unmaking of institutions must be dependent upon the democratic agreement reached by people under the sphere of communicative rationality. The Parliament of India, if devotes enough time, may reach an agreement to establish marriage as an institution in an inclusive sense. But the approach of the court is based on a top-down model whose language has less impact on the social experiences of ordinary life practices. Usually, lawyers gain with both hands in transforming the moral questions in legal terms and then making the court the last arbiter of decision-making.

Also Read: Legal cover to same-sex marriage will shake India’s cultural roots, RSS body writes to Supreme Court

What is gained and lost in relying on juridical power as the first and last resort to decide most of the morally contentious issues of our society?

Democracy as an institution was conceived in terms of the attitudinal transformation of social behaviours. It requires the attitude of reflection-based agreement. This is the acute crisis of most of the formal democracies that have failed to facilitate a fair dialogical culture in which such social choices may be agreed upon. For example, the moral question of abortion in the US is still alive after 50 years of the verdict of the US Supreme Court in Roe v. Wade, 1973. This shows that the reliance on courts as the last forum of hope to decide upon deep moral problems does not lead to lasting solutions. This brings a full stop to the question which requires more time and reflection for its holistic resolution.

Personal Law, Religion, and Scientific Rationality

Most of the personal laws in India have originated from religious values which can be discerned historically. And this is not a novel truth only applicable to India. Most of the concepts in modern public and private law are secularised myths. Marriage as a social institution under Indian traditions has always been conceived as a union of two opposite sexes. At the beginning of the Indian Republic, it was the Parliament that brought the modern rationality emanated from the Western philosophical traditions and modernised the Hindu personal laws of India.

However, the scope of customary laws was retained wherever required. Yet many customary practices were displaced on the ground of constitutional principles, such as equality, liberty, human dignity, and autonomy. Such policy initiatives were opposed by the conservatives on the ground that intrusive measures of the State will temper with the cultural and religious ethos of India. In the end, personal law reforms for Hindus brought by the Parliament have been accepted by the community.

The founding fathers and mothers of the Constitution knew that there is, with respect to rights, a difference in terms of recognition and protection. Recognition is normative in character and mere recognition does not culminate into the desired results. Whereas, the protection of a right requires the establishment of appropriate state apparatuses for its enforcement. For example, the Supreme Court has previously recognised the right to livelihood, rights of women at workplace, right to education, and food, etc. But all these rights could not translate into social realities since the protection machinery was not put in place by the legislatures.

Also Read: Same sex marriage issue ‘complex subject, should be left to Parliament, Centre tells SC

Marriage is a cultural institution, whose re-conceptualization may change the organising principles of society. The whole debate is revolving around the conception of ‘individual-self’ whose right to desire is either claimed or opposed. If society is conceived in terms of spiritual or fraternal bond, then no such discourse will arise in the first place, and the will to love, desire, and to develop communion would have social acceptance without transforming the moral issues into questions of legal rationality.

State, Legality, and Subordination of Cultural Life

Why are desires required to be sanctified by legality offered by the State? Max Weber demonstrated that the religious view of life, prior to modern period, had become dependent on the reified culture of formalized law and bureaucratized state. The rise of the modern state eclipsed the living law of society governed through social conventions, customs, magic, and rituals.

The centralisation of political institutions and hierarchy-subordination have brought a dehumanised and de-historicised state of individual and social life, whose entire meanings and values are derived from the state. The moral and ethical dilemmas ever present in cultures have been swallowed up by the state, and every social institution, such as marriage, is now totally dependent on the legality sanctioned by the politico-legal State.

Overlapping consensus and communicative action

The morality and legality of same-sex marriage can be established only through “overlapping consensus” developed by Indians through “communicative action”. Most of the debates are ill-informed and emotive in nature, therefore a fair social consensus is far from the possibility. The method of legal rationality only obfuscates the real question and feasible solutions.

(The article is co-authored by Dr. Chanchal Kr Singh, Associate Professor, Dr. Mritunjay Kumar, Assistant Professor, and Aastha Naresh Kohli, LL.M. Scholar at HPNLU Shimla)

Disclaimer: Views expressed are personal and do not reflect the official position or policy of Financial Express Online. Reproducing this content without permission is prohibited.