The Supreme Court of India is seized of a matter which is complicated by its simplicity — legalising same-sex marriage. In a civilised world and a society which is supposed to be run by a Constitution that upholds individual liberty, a simple amendment in the civil marriage law acknowledging the changes that human society passes through and the nuances it appreciates as its understanding of human nature gets better and better would have been sufficient to let citizens of marriageable age live in whatever relationship they wanted.
But India, that is Bharat, is a bit complex when it comes to interpersonal relationships such as marriage. Religion, caste, language and other interest groupings jostle to seek a role in people’s lives. Any attempt to update them as to how these are irrelevant is resisted by someone or the other who feels threatened by the resulting changes. No surprise then that when it comes to same-sex marriage a government led by right wing morals would not hesitate to tell the whole world that to its mind it is an “urban elitist concept”.
Articles 14 and 15 of the Indian Constitution together form one of the best guarantees of human freedom. The whole document is a treatise written with a view to protecting the single individual against society and its various manifestations such as the state and government. The two articles, which ensure everyone’s equality before the law and protects each person against discrimination based on all conceivable factors, offer an adequate platform for building more protections, if need be. And the scope of Article 21, which primarily ensures the right to life and liberty, has already been expanded to cover human dignity, irrespective of sex, gender and sexual orientation.
Thus, a constitutional court has every right to look into the laws related to individual choices and the contention of the Union government that it falls squarely in the legislative realm looks untenable. The judiciary has been called to adjudicate on the issue only because of the failure of the executive and Parliament to align the laws to the changing times. The Supreme Court has made its position safer by saying it will not visit the personal laws of different religions regarding marriage but will examine the scope of the Special Marriages Act, 1954, a law that gives two eligible citizens the right to marry irrespective of their religious affiliation or lack thereof, to see if it can cover not just “man” and “woman”.
While dealing with the entry of women in the Sabarimala temple, the Supreme Court relied on the concept of constitutional morality, instead of going by societal moorings to reassert the concept of equality. However, it was resisted by a section of the people who felt that certain rituals have the strength of tradition and should not be tampered with. A larger consultation with every stakeholder would have helped prepare a social background so that it would have wider acceptance. It is welcome if the Union government is enlisting the states in this process with an open mind to find a progressive outcome that can match developments all over the world. Any other motive could be self-defeating.
