Status as on- 22/04/2023
This week, the Supreme Court commenced hearing on a petition filed by a same-sex couple to give legal sanction to same-sex marriages by including them within the Special Marriage Act. This has invited sharp reactions from the Central Government’s representatives and religious bodies across faiths.
The main line of the argument opposing judicial intervention in this matter draws from the notion that personal laws of various communities that are based on the traditional concept of man and wife would be threatened by same-sex marriages. Further, it has been opposed on the ground that instead of following a top-down approach through judicial overreach, it is important to create societal acceptance of same-sex marriages through consultation with stakeholders and ultimately urge parliament to pass a law recognizing such unions.
The above contentions, however, fall flat on several grounds. Firstly, the present petition for legalizing same-sex marriage is outside the sphere of personal laws, given that it is being sought under the Special Marriage Act.
Furthermore, there is precedent regarding judicial intervention in sensitive civil matters. Talaq-e-bidder (triple talaq) had been declared unconstitutional by Supreme Court in 2017, without following the process of consultation with all stakeholders in society. However, despite directly challenging the personal law of a community, the ruling was welcomed by society at large and was subsequently codified by legislation in Parliament.
Next comes the argument of judicial overreach. It is important to note that when it comes to policy matters such as demonetization, the Supreme Court’s refusal to intervene was based on the reasoning that such questions, arising out of political differences, ought to be dealt with in the realm of politics. However, the petition to legalize same-sex marriages does not any challenge to the present regime on administrative grounds.
Rather, it grapples with the core question of whether Articles 14 and 15 of the Constitution, which guarantee the right to equality and the right against discrimination, are being violated by not permitting same-sex couples to get married. Hence, if such rights are violated, the court cannot be ignorant of their violation while waiting for societal acceptance to develop.
In fact, a positive decision in this regard would be a logical corollary to the decision in the Navtej Singh Johar case wherein Section 377 was partially struck down to decriminalize sexual intercourse between any two consenting individuals. Attaching the institutional sanction of marriage to any union of same-sex individuals would further enable same-sex relationships to gain wider social approval.
Therefore, the current stance of the Supreme Court to hear the petition seems appropriate from a constitutional point of view. At the same time, it must be recognized that hearing such fundamental questions of constitutional importance takes up valuable time for the Court. This consequently leaves less time for routine matters (such as appeals) to be taken up, thereby adding to the high pendency of cases already existing in the Indian judiciary. Hence there is a need for a separate Constitutional Court to hear and decide on constitutional questions, such as Spain and Germany.
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