The Supreme Court has said that judicial restraint is consistent with and complimentary to the balance of power among the three branches of the state. Judicial restraint not only recognises the equality of the Parliament and Executive with the Judiciary, but it also fosters that equality by minimising inter-branch interference by the Judiciary.
The separation of powers between the Legislature, Executive, and the Judiciary is part of the basic structure of the Constitution. In other words, it is unchangeable. Here lies the constitutional significance of the concept of separation of powers. The great jurist James Madison said that separation of powers preserves liberty and prevents tyranny. Montesquieu wrote, “When the Legislative and Executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…Again, there is no liberty, if the judicial power be not separated from the legislative and executive.”
The Apex Court has also said that Legislature as an elected and representative body enacts laws to give effect to and fulfil democratic aspirations of the people. The processes applied are designed to give careful thought and consideration to wide and divergent interests, voices, and all shades of opinion from different social and political groups. The Legislature functions as a deliberative and representative body. It is directly accountable and answerable to the citizens of the country.
When the above constitutional principles as laid down by the Apex Court are applied to the same-sex marriage pleas by the LGBTQ groups, activists, and other citizens before the Apex Court, the Indian Parliament emerges as the organ of the state in whose domain the pleas should be raised. The Legislature, as an institution and a wing of the government, is a microcosm of the bigger social community possessing qualities of a democratic institution in terms of composition, diversity, and accountability.
While consensual same-sex relations have been decriminalised in India with the Supreme Court declaring Section 377 of the Indian Penal Code (IPC) as unconstitutional in Navtej Singh Johar judgement (2018), however, legal permissibility to same-sex marriage calls for a much wider debate across the social spectrum.
Are we, the people of India, ready for same-sex marriages? How does the contemporary Indian society view same-sex marriages? What would be the social impact of same-sex marriages? Would same-sex marriage couples be secure from the backlash of opposing social groups? What would be the impact of same-sex marriages on laws of adoption, inheritance, divorce, maintenance, and domestic violence amongst others? These issues have social and legal ramifications across the Indian society and call for a debate for which Parliament is the concerned constitutional forum, based on the principle of separation of powers and the domain of making and amending laws.
In my view, recognition of same-sex marriages in India at this point of time, will only lead to chaos and violence against LGBTQ couples who marry. India lives not only in the metros but in villages and the rural India is far bigger in population than the metro cities. Ostracism and violence against married LGBTQ couples is a grave risk that permissibility of same-sex marriages carry. In my view, till the time LGBTQ couples get social acceptance, in other words, they are respectfully accepted in public places such as schools, colleges, restaurants, cinema halls, malls, markets, family get-togethers, village panchayats, and other social gatherings, legal permissibility to same-sex marriages is fraught with the risk of violent reactions from numerous groups.
Acceptance by a large section though need not be a majority of our contemporary society is necessary before same-sex marriages can be legalised. I don’t see this today and must wait for its time to gradually arrive over the next decade or so.
Even in advanced Western countries, legal acceptance to LGBTQ marriages has evolved over a period. In 2004, Massachusetts was the first out of the 50 states that legally recognised same-sex marriage in the United States of America (USA). Earlier, there were various legislations in different states, including Defense of Marriage Act (DOMA) that banned same-sex marriages. All restrictions and bans were subsequently struck down by judicial pronouncements such as United States v. Windsor (2013) and Obergefell v. Hodges (2015).
It took more than 10 years for recognition of same-sex marriage to go from one state to all 50 states of the United States of America. DOMA was only recently repealed in 2022 and replaced by the Respect for Marriage Act, which recognises and protects same-sex and inter-racial marriages under federal law and in inter-state relations.
The other developed countries that have recognised same-sex marriage are Australia (2017), Germany (2017), England and Wales (2013), Scotland (2014), France (2013), New Zealand (2013), Sweden (2009), Canada (2005), and the Netherlands (2000).
Can and should we in India also at this point of time legalise same-sex marriages? In my view, no.
Legal acceptance to same-sex marriages would also need comprehensive review of a gamut of laws such as divorce, maintenance, guardianship, adoption, inheritance, and domestic violence amongst others and it’s not a matter only of the Special Marriage Act (SMA), as has been rightly pointed out by the opposition to the petitioners claiming the right to marry for the LGBTQ community.
The petitioners have claimed the right to marry under Article 21 of the Constitution of India. The right to life and liberty under Article 21 is not absolute. In my view, it admits to restrictions and abeyance in this case on the ground that let the Indian society evolve as stated above.
Same-sex marriage is a social idea whose time for legal recognition is yet to arrive. Let it socially evolve before it can be legislatively recognised.
(Vivek Sood is a Senior Advocate. Views expressed are personal.)
