What two adults do in private is not a matter of concern for the state and society. It was on this plea that the Victorian provision, as contained in Section 377 of the Indian Penal Code which prohibited homosexuality, was rescinded.
In other words, homosexual relations were decriminalised. Taking their cue from this liberal interpretation of the law, defenders of same-sex relationships want the right to marry to be extended to such couples also. Right now, marriage is possible only between an adult man and an adult woman and they alone constitute a family with or without children. The Narendra Modi government’s view on the subject is well-known and it was, therefore, not surprising that in the affidavit submitted in the Supreme Court, it laid great store by the Victorian notion of marriage. It lays emphasis on husband, wife and children, little realising that children are not a must!
Left to itself, the government would like the matter to be dealt with by Parliament because it knows for sure that no political party will muster the courage to take a stand, given the conservative society in which it functions. Had the Delhi High Court not shown the readiness to hear the plea for decriminalising homosexuality, Section 377 would have remained on the statute book. The court also has the power to create laws through interpretation of existing laws, though legislation is the primary duty of the legislature.
Giving the right to marriage and the protections of the laws that govern marriage to the same-sex couples could stir up a hornet’s nest as few of the adherents of organised religions would support it. No doubt, it is a ticklish issue that needs to be debated and decided upon by a larger Constitution Bench, as decided by the Supreme Court on Monday.
