Ball Is In Courts – Bar councils’ argument that same-sex marriage is not SC matter goes against constitutional view of rights

Source: The post is based on the article “Ball Is In Courts – Bar councils’ argument that same-sex marriage is not SC matter goes against constitutional view of rights” published in The Times of India on 25th April 2023.

Syllabus: GS – 2: Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

Relevance: Issues related to same-sex marriages

News: Recently, the Bar Council of India and state bar councils on asked the Supreme Court to avoid a decision in an ongoing hearing seeking legal recognition of same-sex marriages in India.

What is the reason behind the bar council demand?

The bar councils want the matter to be left to the legislature. This is because of the opinion that the law is essentially a codified societal norm reflecting the collective conscience of the people.

About the case and Centre’s affidavit on legalising Same-sex marriages in India 

What are the issues in the centre’s affidavit on legalising same-sex marriages?  

Does the Constitution always support majoritarianism?

The Constitution is important in a democracy where the right to govern is decided by a parliamentary majority. But that does not mean that it always supports majoritarianism. For example, a) the triple talaq judgment of 2017 declared the practice illegal, and arguments of the “collective” wish of Muslim “communities” were rightly ignored, b) A constitutional bench struck down Section 377 of IPC and decriminalised consensual same-sex relations.

As a vision document, the Constitution is not constrained by social “norms” that usually change at a faster pace. Instead, it prioritises an individual’s fundamental rights.

The Constitution’s underlying principles are inconsistent with majoritarianism. It’s these constitutional principles that have protected laws aimed at social reforms against many social “norms”. For example, the Madras Temple Entry Authorisation Act, 1947, which opened access to all groups was upheld by the SC.

What does the Constitution say about the case on legalising same-sex marriages?

The Indian Constitution was ahead of its time. For instance, the universal adult franchise wholly ignored the regressive social views of that era. This is one of the Constitution’s greatest gifts. It needs to be nurtured. The ongoing hearing on same-sex marriages is a logical extension of that gift.