In a parliamentary democracy let the will of the people decide upon issues. Parliament must decide on same-sex marriage

THOUGH THE ORIGINAL petitioners may genuinely have been looking to find a way to marry a partner of the same sex, the ongoing litigation in the Supreme Court (SC) on the issue of same-sex marriage is no longer about their claimed rights or even about them. It has become another attempt by a minuscule English-speaking elite, shaped largely by Western thought, to retain the hold they have had over the country for the last 75 years.

The challenge this elite has faced over the last decade is unique. Their hold over setting and controlling the agenda has been put to the test by the “Hindi-medium types”. “HMTs” had learnt to get themselves elected decades back, but their aspiration was limited to becoming “people-like-us”, owning mansions and farmhouses and wealth in Swiss banks. Those elected now have not only not been to English-medium schools, they do not carry the baggage of not being able to quote Machiavelli or Shakespeare. On the contrary, they take pride in quoting the likes of Chanakya and Swami Vivekananda; they do not need to signal their arrival by being able to differentiate between vintage wines or Scotch whiskies-they proudly prefer chaach.

In plain English, being liberal means being tolerant of others and their views. Our self-styled liberals are quite obviously not. Take Indira Jaising’s article (‘The partisan council’, IE, April 26). She argues that the SC is duty-bound to uphold the Constitution and the values espoused by it, but her arguments challenge this very Constitution and its principles. She doubts whether Parliament or state legislatures represent the will of the people because of our first-past-the-post system of elections-challenging parliamentary democracy as provided for in the Constitution. She dismisses views not in conformity with hers as being “regressive notions of marriage, rooted in religion and culture”, thus questioning the fundamental right to freedom of views and perhaps, by implication, the concept of the social contract itself. Those having views that are different from hers are accused of “polarisation”.

No sophistry is required to explain the arguments of the other side. Parliament and state legislatures together represent the will of the people to the best extent possible, and as provided in the Constitution. Together, they have the right to amend the Constitution or enact laws for their jurisdictions. The law is an expression of society’s needs, values and thinking, depending on the levels of education, literacy, exposure, socio-economic development, etc. No law can be enacted divorced from social realities. Important changes to personal laws that have taken place in the past – the anti-Sati law, widow-remarriage law, Sharda Act, Hindu Code Bill, etc, have all had legislative approval, even if they seemed “unpopular” at the time.

Indian society at large sees marriage as a solemn union of opposite sexes, with the likelihood of procreation, limited by choice on medical issues. The elected representatives are in touch with and responsive to what the people feel. If society at large had felt strongly about same-sex marriage, no politician would dare oppose it.

The demand for recognising same-sex marriage cannot be dismissed out of hand but neither can be the view that is opposed to it. Let everyone be entitled to their views, let us respect our Constitution and let Parliament and legislatures debate and decide on the issue. To short-cut parliamentary democracy itself, ironically, in the name of upholding the Constitution, is to pave the way for an unknown and dark future.

Rajiv Mehrishi is a IAS (retd) officer; former Home Secretary, CAG and a Padma Bhushan awardee.

This article appeared first in The Indian Express. Reproduced here with permission of the author.


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