Same-sex marriage must be debated in Parliament

The issue of marriage concerns society, and society’s opinion on this issue cannot be excluded. The voice of society is best reflected in Parliament

As opposed to many nation-States, India is a civilisational State. Our respect, acceptance and contributions to science, technology and progress in human ingenuity match our allegiance to rituals and customs. Marriage in India is an important social institution, and it is sanctioned by customs and laws. It is almost a universal social institution in the country.

In multicultural societies, a State protects the rights of individuals and the well-being of the whole that these individuals constitute. (Sonu Mehta/HT Photo)

Our civilisational State attaches a sanctity to marriage, and in major parts of the country, it is seen as a holy union and a sanskar (ritual). Therefore, marriage here depends on customs, rituals, practices, cultural ethos and societal values. The concept of marriage emanates from the personal laws of citizens.

With the evolution of jurisprudence, the legislature has codified some aspects of marriage. The conduct of the parties and their relationship is governed by personal, codified, or sometimes customary or religious laws. The jurisprudence of any nation, be it by way of codified law or otherwise, evolves over time, and it is based on societal values, beliefs, cultural history and other factors. Our codified or personal laws come into play in cases concerning personal relationships, such as marriage, divorce, adoption, and maintenance. The Constitution and/or Parliament have sanctified these laws. It cannot be left to the courts alone to adjudicate such matters.

Whether we talk of marriage under codified statutory or uncodified personal laws, marriage remains a socially recognised union of two individuals – a biological man and a biological woman. Whether in the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Special Marriage Act, 1954, or the Foreign Marriage Act, 1969, marriage occurs between a biological man and a biological woman.

The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws. Given that marriage is a social institution – which continues to evolve based on societal values, beliefs, cultural history and other factors – any debate over which union constitutes marriage is, in essence, a legislative function and should not be a matter of judicial adjudication.

The contention that the 2018 Supreme Court (SC) order, which decriminalised same-sex (but did not legalise) relationships, extends legality to same-sex marriages by the same logic is flawed. Revisiting the SC’s view in the Navtej Singh Johar vs Union of India (2018) is imperative here. The order says: “…There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”

Earlier, in the Mr’ X’ vs Hospital’ Z’ on September 21, 1998, the court said: “Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be a mental, psychological and physical union. When two souls thus unite, a new soul comes into existence. That is how life goes on and on on this planet…”

The parties in a marriage are part of an institution from which several rights and liabilities flow. Rights cannot be read in isolation from liabilities or duties. Seeking a declaration for solemnisation or registration of marriage has more ramifications than simple legal recognition, which a court of law can easily extend.

The family unit includes a husband, a wife and children, which necessarily presuppose a biological man as a “husband”, a biological woman as a “wife”, and the children born out of the union between the two. A large and growing body of scientific evidence suggests that the intact family unit – a biological man and biological woman – is best for children. Our surrogacy laws also factor in this crucial understanding of a family unit. A unit where either parent is missing because of a tragedy or due to a divorce is an aberration and cannot be cited or seen as a norm that can or should be replicated by a court order. Over time, society has arrived at norms where children are protected within families to grow into physically, mentally and emotionally healthy individuals.

A court order cannot be the way to disrupt this system. In multicultural societies, a State protects the rights of individuals and the well-being of the whole that these individuals constitute. At a time when breakdowns of family units have exposed a whole generation to unprecedented mental health issues, a judicial injunction on the future structure of families – which an order on same-sex marriage would amount to – is best avoided.

The issue of marriage concerns society, and society’s opinion on this issue cannot be excluded. The voice of society is best reflected in Parliament, so the matter needs to be debated in Parliament and not adjudicated in a court of law.

Bhupender Yadav is the Union minister for environment, forest and climate change; and labour and employment

The views expressed are personal