- At the outset, let us all bow to our founding fathers, who were not only instrumental in drafting the well-rounded and comprehensive Constitution but also were far-sighted and visionaries anticipating the challenges that the changing times will usher in. As you are aware, the Constitution guarantees certain fundamental rights to the citizens that are inviolable and must be extended to each irrespective of class, creed, caste, or religion. Within the ambit of the constitutionally mandated fundamental rights, certain personal laws representing various religions that highlight the diversity so commonly associated with the Indian nation also exist. The SC is well-known for upholding the tenets of the Constitution by stepping in whenever necessary.
PC: freepik
- The entire nation is glued to the proceedings underway in the SC hearing the petitions seeking legal recognition of same-sex marriages. Of course, the Union Government, several religious heads, and conservationists have expressed their vehement opposition to same-sex marriages in no uncertain terms. Now, the Bar Council of India and state bar councils have asked the SC to avoid a decision on the matter. The bar councils want the matter to be left to the legislature, as they believe the law is essentially a codified societal norm reflecting the collective conscience of the people. Mind you, this is another way of expressing majoritarianism, which rests on the idea that the numerical majority always has the decisive say. The issue before the SC is legal.
- Let’s delve further to understand it in depth. The petitioners’ case is that when statutory laws do not recognize same-sex marriages, they violate fundamental rights. The touchstone here is the Constitution, whose underlying principles are inconsistent with majoritarianism. It’s these constitutional principles that have protected laws aimed at social reform against many social norms. For instance, the SC upheld the 1947 Madras Temple Entry Authorization Act, which permitted entrance to all groups. Remember that the Constitution effectively prioritizes a person’s basic rights. As a result, the Constitution is crucial in a democracy where a legislative majority determines who has the authority to rule.
PC: freepik
- As seen before, the SC has provided succor to many oppressed individuals by being steadfast in its adherence to constitutional principles. A recent example is the 2017 triple talaq ruling. It turned on the existence of Muslim personal law legislation from 1937. Triple talaq was ruled unlawful since all statutory legislation must follow the Constitution, and rightfully, objections to the overall intent of Muslim communities were ignored. The Supreme Court’s historic 2018 decision to invalidate Section 377 of the IPC, which decriminalized consenting same-sex relationships, is the source of the bar councils’ unease. The SC will be unable to decide this case due to personal laws, nevertheless. I’m waiting for the decision in this case.
