New Delhi
\nAs final hearings on marriage equality make their way through the Supreme Court, the government\u2019s submissions have focused on a single argument: sexuality is a matter for the legislature, not the judiciary.
\nThe current petitions pending before the court have been accused of putting forth a \u201cmere urban elitist view\u201d that does not take into account the views of \u201ca farmer in South India or a businessman in the North.\u201d
\nIt is important to dismantle two fundamental premises implicit in this argument.
\nThe first: that it is only Parliament that must decide on questions of marriage equality.
\nThe second: that Parliament has not already deliberated \u2014 and failed \u2014 to address these questions over the past decade.
\nWhile the former is a legal argument concerned with the supremacy of Parliament, the latter advocates for a political primacy of Parliament.
\nThe supremacy of Parliament in deciding upon issues of \u201cseminal importance,\u201d especially when they relate to societal norms, is suspect at best and dangerous at worst.
\nTime 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.
\nThe protection of rights and freedoms, despite political will or even in the face of political opposition, remains a cornerstone of Indian constitutional democracy.
\nYet, 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 \u2014 in favour of or against \u2014 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.
\nOrdinarily, 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.
\nThe government\u2019s submissions before the court have argued that only discussions in the legislature can ensure that \u201cwide-ranging ramifications of recognising such sacred relationships are debated from every angle.\u201d But these submissions forget that the government itself has repeatedly stonewalled such discussions from taking place
\nin Parliament.<\/p>\n","protected":false},"excerpt":{"rendered":"
New Delhi As final hearings on marriage equality make their way through the Supreme Court, the government\u2019s 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 \u201cmere urban elitist view\u201d that does not […]<\/p>\n","protected":false},"author":2,"featured_media":319555,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[],"class_list":{"0":"post-327275","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-world"},"yoast_head":"\n