The State has a legitimate interest in maintaining a societal equilibrium and ensuring cultural ethos and societal values remain unbroken
Sixteen sanskaras (rites of passage) mark the various stages of human life and signify entry to a particular ashrama (stage of life). The vivaha (marriage) sanskara begins the grihastha ashrama when life as an individual family begins. Marriage is a sacred institution in our country. It revolves around three primary objectives — dharma (duty), procreation, and kama (pleasure); all three can be achieved only by a union of a biological man and a biological woman.
The institution of marriage has played a significant role in the stability and evolution of our society. In the modern era, the State is the protector of this societal ethos. It is seminal to the State, and its governance is best left to the people’s representatives. In the debate around same-sex marriages, it is important to point out that personal laws should be discussed, debated, and argued in Parliament, and not left to the wisdom of the judiciary or, more specifically, five judges, however learned they might be or however empowered the Constitution may have made them.
The government has opposed a batch of petitions in the Supreme Court (SC) seeking legal validation of same-sex marriage. The Union argues that such matches are incompatible with the laws of the land, and its values, and the proper forum to debate this should be Parliament. Political parties in the Opposition camp are shirking their responsibility by not stating their views on same-sex marriage. At the same time, in off-the-record conversations, they agree that it is not part of our societal values and is unsuitable for India. Parliament alone should decide because any decision will significantly influence our society’s development. Allowing same-sex marriages will strike at the core of our culture, societal values, and traditions, leading to an upheaval.
Marriages are the most personal public institution and straddle the divide between the individual and the State. A marriage, therefore, is about entering a relationship with public significance. Consequently, the State has a legitimate interest in maintaining a societal equilibrium and ensuring cultural ethos and societal values remain unbroken.
The SC has always been the protector of individual freedoms. The government’s stance on same-sex marriage does not impact the individual’s right to love, express, and freedom of choice. While all freedoms come with select limitations, the right to marry is not at the core of an individual’s freedom. Hence the SC has made an error by taking on a subject that is not at the heart of the definition of individual freedom.
Our personal laws — across all religions — allude to the union of a biological man and biological woman to create a married family unit. Same-gender marriages are not accepted or recognised in codified or traditional personal laws. If we start overlooking the need for a biological man and biological woman to be defined as husband and wife, a large section of our laws and regulations will become unworkable. Numerous regulations linked to the institution of marriage, such as succession, divorce, adoption, and even the domestic violence act, define the aggrieved person as any “woman”, will turn topsy-turvy. For example, the dowry act refers to the dowry for the benefit of the wife. At the same time, the Code of Criminal Procedure talks about the maintenance of “wives”, and the Indian Penal Code provides special rights to women who are part of a legally recognised relationship of marriage.
The institution of marriage and family are important social structures that provide for the security, support, and companionship of members of our society and bear an important role in raising children and their mental and emotional upbringing. Therefore, the child’s fundamental rights need to be brought into this discussion and put front and centre. To cite acceptance of same-sex marriage in a handful of countries doesn’t make it incumbent on India to adopt it too. India is a civilisational State, and it will need to find solutions that align with its societal realities and cultural ethos and mores.
