Leave It To Wisdom Of People, Parliament Should Decide On It: Law Minister Kiren Rijiju On Same-Sex Marriage

Union Law Minister Kiren Rijiju on Saturday said that the issue of same-sex marriages should be left to the wisdom of the people. 

Speaking at India Today Conclave 2023, Rijiju said the Parliament is the forum that should decide on the subject. 

Rijiju's comments come at a time when the Supreme Court's Constitution Bench is set to take up a clutch of petitions seeking legal recognition for same-sex marriages. The Union government and the Bharatiya Janata Party (BJP) have both opposed these petitions.

What did Kiren Rijiju say?

He said, "I leave it [same-sex marriage] to the wisdom of the people of the country. Who reflect the thinking of the country? It is the Parliament. Parliament is the reflection of people's idea, people's vision, and people's choice. We have their representatives sitting the Parliament who cover all territories of India."

While same-sex relations were decriminalised in 2018 with the Navtej Singh Johar Vs Union of India (2018) judgement of the Supreme Court, there is no legal recognition to same-sex marriages. Gender rights campaigners believe the recognition of same-sex marriages is the next logical step after the decriminalisation of homosexuality in 2018.

Rijiju's comments also come at a time when there is an ongoing tussle between the Executive and Judiciary, with questions being raised at the transparency of Judiciary and separation of powers. Touching the scope of their domains, Rijiju said the Supreme Court has its own domain defined under the Constitution of India.

He said, "The Supreme Court has its own authority. We are not supposed to encroach upon each other's territory. But the matter which you talked about, the institution of marriage, how India should govern in terms of taking care of various aspects of civil actions and requirements of marriages, this has to be deebated in the Parliament."

Rijiju furhter said that if any law passed by the Parliament is not in the spirit of the Constitution, then the Supreme Court can pass an order against it. 

However, when it comes to policy, it's the Parliament and people of India who decide things, said Rijiju.

He said, "When it comes to policy, we have to understand India is a democracy. A democratic country has its own set-up. It is not only the Minister of Law and Justice who has to give an opinion on this, but it is for all the political parties of the country, more than that, the people of India will decide how our future should be governed."

What do same-sex marriages pleas say?

A clutch of petitions are under consideration at the Supreme Court that seek legal recognition for same-sex marriages. 

Earlier on Monday, the Supreme Court transferred the pleas to the Constitution Bench of the apex court. The SC called it a "very seminal issue".

Earlier on January 6, the Supreme Court transferred to itself various petitions seeking recognition of same-sex marriages in different high courts. 

The petitions filed so far seek recognition under Hindu Marriage Act (HMA), Special Marriage Act (SMA), and Foreign Marriage Act (FMA). For example, a petition by Abhijit Iyer-Mitra argues that HMA does not distinguish between heterosexual and homosexual marriages in its wording. To drive this point, he argues that HMA requires "any two Hindus" for a marriage.

Iyer-Mitra's plea further says that the non-recognition of same-sex marriage violates the Right to Equality in Article 14 of the Constitution of India, Freedom of Religion in Article 25, and Right to Life in Article 21. 

Another petition seeks legal recognition on gender-neutral wording —similar to the points made regarding HMA— under the SMA.

Centre, BJP oppose same-sex marriages

The Narendra Modi government and the BJP have consistently opposed the petitions seeking legal recognition of same-sex marriages.

In February 2021, the Centre said a marriage is only between a man and a woman and that interferance in current marriage laws "would cause havoc" in the society, according to India Today. The Centre further said the same-sex marriage cannot be a fundamental right.

"Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the Petitioners cannot claim a fundamental right for same-sex marriage...[Decriminalisation of homosexuality] applies to aspects which would be covered within the personal private domain of individuals [akin to the right to privacy] and cannot include the public right in the nature of recognition of same-sex marriage and thereby legitimizing a particular human conduct," said the Centre, as per India Today.

In its affidavit filed this month, the Centre said that while same-sex unions or non-heterosexual marriags are not unlawful, there is no recognition either and there is no legitimacy despite decriminalisation of homosexuality in 2018. 

The Centre also said the fundamental right to life and liberty cannot include any implicit approval of same-sex marriage. The Centre said that a special status which is granted to heterosexual marriage cannot be construed as a discrimination against same-sex couples under Article 15(1) of the Constitution or as a privileging of heterosexuality. This is because no other forms of cohabitation, including heterosexual live-in relationships, enjoys the same status as heterosexual marriage, said the Centre.

The Centre also said that the fundamental right under Article 21 is subject to the procedure established by law and the same cannot be expanded to include the fundamental right for a same-sex marriage to be recognised under the laws of the country which in fact mandate the contrary.

"It is submitted at that there can be no fundamental right for recognition of a particular form of social relationship. While it is certainly true that all citizens have a right to association under Article 19, there is no concomitant right that such associations must necessarily be granted legal recognition by the State. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same sex marriage," said the Centre.

The Centre said that the principles of legitimate state interest as an exception to life and liberty under Article 21 would apply to the present case and the statutory recognition of marriage as a union between a "man" and a "woman" is intrinsically linked to the recognition of heterogeneous institution of marriage and the acceptance of the Indian society based upon its own cultural and societal values which are recognised by the competent legislature.

"In a same sex marriage, it is neither possible nor feasible to term one as 'husband' and the other as 'wife' in the context of legislative scheme of various statutes. Resultantly, the statutory scheme of many statutory enactments will become otiose," said the Centre's affidavit.

The government said that the intent of the legislature was limited to the recognition of a legal relationship of marriage between a man and a woman, represented as a husband and wife. Any other recognition over and above the conventional relationship of marriage between a man and woman would cause irreconcilable violence to the language of the statute.

The government said that if the prayer of the petitioners is recognised, it may lead to further anomalies in other enactments governing marriages of Christian and Muslim persons.

Left-Liberal activists changing India's ethos: BJP leader

Earlier in December 2022, BJP leader Sushil Modi termed the campaign for same-sex marriage recognitiona a "left-liberal" ploy to change "ethos of India". He also questioned the role of Judiciary in the matter.

"Two judges can't decide on such an important social issue, which warrants a debate in Parliament and in society at large. Some left liberals and activists are making efforts to change the ethos of the country. I urge government to strongly argue against same-sex marriage in court," said Modi at the time.

(With PTI inputs)