The Paranoia of Former Judges Opposing Same-Sex Marriages on Civilisational Grounds

A group of judges, in an open letter, said the push to legalise same-sex marriages is an attempt to weaken the family system. They shoddily attempt to ensconce their prejudice in scientific reasoning.

In an open letter dated March 24, 2023, a group of former high court judges expressed their strongly worded agony over the “continuous onslaught” against “Bharatiya marriage traditions and family system” by the prospect of legal recognition for queer marriages. This comes in the wake of the Supreme Court’s decision to refer the issue to a constitution bench of five judges. 

The letter describes marriage equality for queer couples to be a “Western” idea that “vested interest groups” are seeking to “superimpose” on “Bharatiya society…to weaken the family system”. This characterisation is mistaken for two reasons. Firstly, marriage equality for queer people is not a distinctly Western ideal merely because it was realised there earlier. The history of human civilisation (Western and non-Western) is pervasively rife with the unequal treatment of queer people. In fact, movements for queer marriages achieved success in the West amid conservative opposition. Speaking of conservative prejudice, the group of judges, led by retired Delhi high court Justice S.N. Dhingra, calls queer marriages “cancerous problems of the West”. This is a further testament to the fact that no single civilisation holds a monopoly either over prejudice against queer people or over its eventual abandonment.

Secondly, the “vested interest groups” pushing for marriage equality are couples personally affected by the issue. Certainly, these couples petitioning the Supreme Court have a personal stake in the matter. But, one must ask why career judges like Justice Dhingra find it unusual (in law) for an aggrieved person to be the one approaching the court. What is it about this simple act of asserting one’s locus standi that this “group of former judges” finds outlandish?

The letter goes on to describe the family system in India as “sui generis” (unique) and considers marriage “indispensable for the growth of the society by way of procreation”. The letter further asserts that “legalising same-sex marriage will strike at the very root” of this system and have a “devastating impact on the society at large”. While the two-parent heterosexual marital family in India may (doubtfully) be sui generis, the Justice Dhingra-led group’s arguments are clearly not. Almost every time state or non-state actors oppose queer marriages, they invoke a same-sex couple’s presumed inability to procreate. While surrogacy has considerably transformed the link between parentage and offspring, one should additionally ask if procreation is central to Indian marriages even right now. Despite the legal insistence on the consummation of marriage, there is no dissolution of Indian marriages only because the couple does not have a child. Also, the law does not withdraw recognition from Indian heterosexual marriages when one of the spouses reaches menopause. Therefore, the procreative motivations for marital recognition are not as dispositively linked to the current legal regime as the statutory talk of impotence and consummation may suggest at first blush. In that regard, the letter’s emphasis on the cultural significance of procreation within marriage only serves to reinforce reprehensible prejudice against couples who choose not to have children.

Also Read: Centre’s Views on Same-Sex Marriage Should Be Guided by Constitutional Morality, Not Social Norms

Furthermore, the letter shoddily attempts to ensconce its prejudice in scientific reasoning. It cites a report on the prevalence of HIV-AIDS among gay and bisexual men in the US to proclaim that “legalising same-sex marriages might lead to an exponential rise” in HIV infections. Such claims have often been made before courts deciding the issue of decriminalising homosexual coitus; and they have consistently been rejected as unscientific. One can see this clearly in numerous judgments across the globe, including the Supreme Court’s Navtej Singh Johar vs Union of India (2018) and the United Nations Human Rights Committee’s decision in Toonen vs Australia (1994). 

Donning their science hats, without any citations, these former judges make outrageous claims like “the gene pool is…going to be weakened affecting the entire human race, especially in terms of collective herd immunity and progressive evolution”. None of this means anything. This is neither backed by research nor scientifically explicable.

In the same pseudo-scientific vein, these former judges declare, “legalising homosexual marriage will have negative consequences over the children adopted by such couples (sic)”. Such stereotypes are scientifically inaccurate and research from leading institutions (like the American Psychological Association, the Canadian Psychological Association, and many others) demonstrates the same. Same-sex parents are as fit and capable as heterosexual parents, and their children are just as psychologically healthy and well-adjusted as those reared by heterosexual parents.

Representative image. Photo: Unsplash

Is parliament representative of queer people?

Towards the end, the letter laments the Supreme Court’s consideration of the marriage equality case in the absence of a “vociferous demand from any section of society”. It then calls for the issue to be returned to parliament for “debate”. The letter peppers this with “separation of powers” rhetoric and states, “the opinion of the society must be obtained to ensure that the law must represent the wish of the society and do not fulfil the desire of few elite sections of the society”. Similarly, in a recent article published by The Hindu, G.S. Bajpai and Ankit Kaushik write, “[G]iven the implications of recognising same-sex unions as a couple, the push to formalise the institution of same-sex unions must come from representative bodies such as Parliament”.

“Representative” of whom? Representing whose concerns? The very idea of parliament having legitimacy to decide queer rights issues as a “representative body” crumbles when one acknowledges how queer people have been invisibilised in legislative spaces. In any other context, an exhortation for vesting decision-making power in an institution that does not represent the people that it aims to govern would sound naïve and morally absurd. Additionally, is it reasonable to ask parliamentarians to now reconsider equal rights for queer people after they slept on it for decades? One must not forget that various MPs have publicly expressed opposition to the idea of same-sex marriages. Against this backdrop, one should ask – why must majoritarian prejudice restrict the horizon of constitutional rights? 

It is true that when political problems are resolved by legislatures, the decision is commanded by what most people want. This is indeed desirable in preference-sensitive matters where benefits to certain groups must be weighed against the costs to others. In such situations, numbers should matter. But, they do not necessarily enjoy a moral pedestal on topics of basic principle – whether pregnant women should be protected against majoritarian beliefs on how and why life is sacrosanct, or whether black people should be protected from discrimination under the US constitution, or if queer people should have equal rights. Every judicial pronouncement on minority rights has (what Bajpai and Kaushik call) “implications”; I do not see how that makes it constitutionally impermissible for the Supreme Court to evaluate the discriminatory landscape of the law as a problem of unequal treatment.

I reject that a “vociferous demand” for marriage equality is absent. What more do sexual and gender minorities have to do to express this demand? The philosophical foundations of a democracy are based on equal concern and equal respect for individual members of society. Queer people seeking recognition of their marriages do not seek to devalue the concept of ‘marriage’, rather they seek it for themselves as a matter of dignity and equality. “Former judges” must abandon the paranoia of viewing this as a Western attack on Indian civilisation.

For far too long have queer people been disenfranchised and invisibilised in constituent assemblies, legislatures, the judiciary, and socio-cultural institutions. Hence, it is time for every Indian believing in the transformative potential of equality to wrest Bharatiya sanskriti from the talons of “former judges” like Justice Dhingra and restore its diversity-embracing glory.

Jaideep Singh Lalli is a lawyer and Singhvi Trinity Scholar, reading for the LLM at Trinity College, University of Cambridge.