New Delhi
As final hearings on marriage equality make their way through the Supreme Court, the government’s submissions have focused on a single argument: sexuality is a matter for the legislature, not the judiciary.
The current petitions pending before the court have been accused of putting forth a “mere urban elitist view” that does not take into account the views of “a farmer in South India or a businessman in the North.”
It is important to dismantle two fundamental premises implicit in this argument.
The first: that it is only Parliament that must decide on questions of marriage equality.
The second: that Parliament has not already deliberated — and failed — to address these questions over the past decade.
While the former is a legal argument concerned with the supremacy of Parliament, the latter advocates for a political primacy of Parliament.
The supremacy of Parliament in deciding upon issues of “seminal importance,” especially when they relate to societal norms, is suspect at best and dangerous at worst.
Time and again, our courts have stepped in when the legislature has been hesitant to deliver upon fundamental rights granted to the citizens of our country.
The protection of rights and freedoms, despite political will or even in the face of political opposition, remains a cornerstone of Indian constitutional democracy.
Yet, if judicial review is integral to the protection of constitutional democracy in our country, then so is judicial restraint. This is the argument that has been used by those who are against the Supreme Court deciding — in favour of or against — the question of the definition of marriage. They point to the primacy of the legislature and the principle of parliamentary sovereignty, with judges being interpreters rather than creators of statutes.
Ordinarily, I would be more sympathetic to such a viewpoint. After all, rights cannot be won merely in courts but must be fought for on the streets. Courts are meant to be safety valves: bulwarks against a denial of rights, not the primary driver of a recognition of rights. In this case, however, I cannot help but call out the rank hypocrisy of those conveniently waving the flag of parliamentary democracy to avoid concrete discussions on LGBTQ+ issues.
The government’s submissions before the court have argued that only discussions in the legislature can ensure that “wide-ranging ramifications of recognising such sacred relationships are debated from every angle.” But these submissions forget that the government itself has repeatedly stonewalled such discussions from taking place
in Parliament.
