Should same-sex marriage be legal in India? It is legal in about 55 countries either in the form of marriage or civil union. Almost all of these are western or south American countries. About 140 countries do not recognize it, mainly in Asia and Africa. What should India do? Various arguments exist for and against the recognition of same-sex marriage. Most are fundamental in nature. Of course, in popular culture, they take a banal form. “Don’t they have the right to be happy? How does it affect anyone else if two people marry?” These are the popular arguments one hears on the issue of same-sex marriage. These are obviously misleading and manipulative. Legally they are irrelevant.
Demand for the legalisation of same-sex marriage is in the Supreme Court where the argument makes the demand of a fundamental right. Naturally, the topic is a hot discussion point across the nation. The central government has opposed the demand. The affidavit submitted by the govt says “While other forms of unions may exist in the society which would not be unlawful, it is open for a society to give legal recognition of the form of a union which a society considers being a quintessential building block for its existence.” What do they mean by building blocks of society? Why are Marxists who reject the institution of marriage in favour of the marriage of same-sex people? Are the two positions in harmony? Do they achieve the same objectives? I won’t try to answer all these questions. Let the people come up with the answers, but nobody is asking the people. This is my first objection to the way this issue is shaping up in India.
Supreme Court making policy! An unelected court making laws should make everyone uneasy. I understand the argument of the Supreme Court being the custodian of fundamental rights. But history is proof that itself is a specious argument used when convenient. Courts that take cognizance of sporadic Tripura violence to protect fundamental rights of life and property fail to do so for bloody Bengal violence. The fundamental right of child safety is casually sacrificed by the same court at the altar of religious freedom of Islamic orthodoxy when it allows the marriage of 15-year-old girls. It is highly subjective as is, but to use it to formulate laws by circumventing the collective wisdom of our democratic process is just unethical.
We are an ancient civilisation that has time and again reinvented itself and found indigenous solutions. Let the people develop an adequate level of the issue at hand and the people will decide. Marriage is not a personal matter; it is a social contract, and it is literally the founding stone of our society and family. Let society deal with the issue of same-sex marriage, not some judge seeking western validation. An imported solution foisted on the people will be unnecessarily disruptive and sets a terrible precedent. This truly is a slippery slope. Next, the Supreme Court will force Pujaris in Hindu mandirs to do pujas with same-sex couples using the same fundamental rights arguments. Given how subjective such arguments are, it will lead to more intrusions into the religious rights of some and not others. To avoid this travesty, let society deal with the issue within our democratic setup. The judiciary exists to serve the people, the people don’t exist to serve the judiciary.
My second objection used to be the bedrock of liberal principles – your rights end where others’ rights begin. Despite the one-sided propaganda, the fact is marriage is about a family and children. It is not just about two men or women putting a legal seal on their union. It is about a family. There are many ways same-sex couples can start a family. One is to make children with external help, like surrogacy or artificial insemination. This option is open to all same-sex couples even now. But the option of child adoption is where many have apprehensions. This option will open up the legalisation of same-sex marriage. One concern is the welfare of children brought up only by two men or two women. It is conventional wisdom in our culture that it is best for children to have a mother figure and a father figure to develop well-rounded adults. While this may not always be possible in real life, this is still the norm.
When it comes to adoption, society needs to discuss if it is in the best interest of children to find a heterosexual home or a same-sex home. This needs to be studied in the Indian context and culture too. The data available on the matter is from the west, but it is very inadequate with most studies covering very few cohorts or covering a very short period. Given that same-sex couples are a relatively new phenomenon in the west too, that is expected. On the other hand, we have undisputed data available on higher-than-average juvenile delinquency rates of children from single-parent households. How much of this delinquency is attributable to the absence of a mother figure or father figure is something we must study in the Indian context.
We also need more Indian data on same-sex couples’ separation rates and their impact on children. The people of India should get all this data and carefully consider if the rights of children are adequately protected if same-sex marriage is legalised. But there is hardly anyone advocating for these children and the whole issue is being presented as a private matter between two consenting adults. It is not. Research suggests in the USA 70% of runways, juvenile delinquents and child murderers come from single-mother homes (Richard E. Redding, “It’s Really About Sex”, Duke Univ. Journal of Gender Law and Policy). While it does not prove children of same-sex couples necessarily face welfare issues, it proves beyond a doubt that children brought up in unconventional homes struggle. We need to study this impact on child welfare before we blindly ape the west. This we, as a society must do. We do not have enough information to take such fundamental steps that will affect the very nature of our society.
Don’t they have the right to be happy? No! No such right exists in any human rights charter. Stop trivialising serious issues with such banal arguments. Every person is unique and finds happiness in different things. Happiness is a pursuit, a duty, not a right. The proponents of same-sex marriage must make serious attempts to make merit-based arguments to the people of India. Convince the people and let society find the best way. I hope the Supreme Court also leaves it to the people of India instead of aping the west in a hurry. Lastly, common people must make an effort to study the issue more and see what impact this may have on society. Western society has changed drastically since the legalisation of same-sex marriage. For those who wish to completely break down traditional society and create a Marxist utopia in its place, same-sex marriage is the beginning, not the end. Are we ready?
