Govt position on gay marriage predictable

The government’s submission before the Supreme Court that it is against same sex marriages was expected, and the reasons for its position are familiar. It has said that same sex marriages are not compatible with the Indian concept of a family which consists of a ‘’husband, wife and children,’’ with the husband being a biological man and the wife a biological woman. It had in the past maintained that ‘’a marriage in India necessarily depends upon age-old customs’’ and that the citizen’s rights do not include the right to same sex marriage. Ruling out any legal recognition for same sex marriages, it has told the court that a different idea of marriage would “cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values”. It wants the court to leave the issue to Parliament because any “recognised deviation… can occur only before the competent legislature.”

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But the court has rightly decided to examine the issue and referred the petitions seeking legal recognition of same sex marriages to a Constitutional bench. The fact that the court decided to hear the matter was proof of its view that it is competent to examine the issue. It would seem that the right to marriage of same sex persons derived naturally from the 2018 Navtej Singh Johar case which decriminalised homosexuality, and the 2017 Puttaswamy case which upheld the right to privacy. The government’s argument that tradition, social attitudes and conventions do not allow same sex marriages is tantamount to saying that they are limiting factors in the exercise of fundamental rights. The Constitution does not recognise them as reasonable restrictions.

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The government does not have the right to define the ‘’cultural ethos, social standards and such other factors’’ and cannot claim to be their custodian. All notions about society, traditions and family have changed over time and will change further. The idea of sexuality and its place in society has also changed. Chief Justice of India D Y Chandrachud’s observation that “atypical manifestations of the family unit” deserve legal protection is a recognition of that reality. In his order in the Navtej Singh Johar case, he had said that "equality is not to be achieved by the decriminalisation of Section 377 alone, it must extend to all spheres of life including the home, the workplace.’’ Many countries have legalised same sex marriages and many others are considering it. The government says only Parliament can decide on it. But the court has the power to ensure the protection of citizens’ fundamental rights, which include the right to choose partners.