The constitutional court is about to decide yet another complex issue- same sex marriage. After Navtej Johar Case (AIR 2018SC 4321), a section of the society, particularly the neo liberals, have been demanding recognition of same sex marriage also as part of personal liberty guaranteed under Article 21 of the Constitution of India. The Apex Court is now going to decide whether same sex marriage is within the constitutional framework and also in the institutional structure of matrimony ingrained by religious scriptures.
The propriety of this sensitive issue being adjudicated by constitutional court, particularly when the institution of marriage itself has the foundation in sacraments, turns out debatable. Marriage is essentially a union of hetero sex; man and woman in legitimised sexual relationship for procreation of children and the sustenance of posterity. Recreation is only a concomitant of institution of marriage. For the homosexual and gay, the pairing in matrimony can only be a civil union for sharing and caring for mutual derivation of happiness without the solemn duty of procreation of progeny. Any reform attempted on the social structure of matrimony, a fundamentally heterosexual union, is basically an issue for individuals concerned to decide.
Interpretational intervention has no effective role in the process. The issue is one touching purely personal liberty; its meaning and sweep judged by each person and not by collective institutionalised adjudicatory bodies. The choice of the individuals must be reflected by way of ‘yes’ or ‘no’ answer- the holding of a Referendum. The basic unit, the individual in the social fabric, has to give his assent or dissent to the issue of ‘same sex civil union’ or ‘same sex marriage’. The question is now on the propriety of holding a nationwide referendum instead of going for adjudicatory process.
Global Scenario
The libertarian thought process and its impact in the western countries made widespread clamour to legitimisation and legal recognition of same sex marriage. The demands found favour with many of the countries in the western world. As many as 34 countries have legitimised the institution of same sex union as legal marriage for all purposes, particularly for deciding civil rights between parties. The process in these countries was done through referendum or by legislation. Australia, New Zealand, Argentina, Denmark, Switzerland, the UK, Belgium, France, Canada, South Africa, Spain all witnessed the neoliberal sensation of same sex marriage idea institutionalised in legislations. But the countries that had gone for referendum for recognising this right showed little deference to the liberals’ demand for legitimisation of same sex marriage. In the recently held referendum in Russia the same sex marriage demand was out-rightly rejected by the overwhelming majority of Russian citizens. In 2013, Croatia saw a referendum to decide on the legal recognition of same sex marriage. Croatia also decided against same sex marriage.
In the recently held referendum in Russia the same sex marriage demand was out-rightly rejected by the overwhelming majority of Russian citizens. In 2013, Croatia also decided against same sex marriage
Bermuda and a few other countries followed the course. But Switzerland, Ireland and Australia approved same sex marriage in referendum followed by legislations, thus joining the league of many other western nations. Recently in 2022, Cuba is the last one having joined for same sex marriage wagon by a nationwide opinion poll. The holding of referendum, which when permitted under the respective Constitutions of the country, appears to be a desirable and an acceptable course for deciding on fundamental questions affecting human liberty and existence. The issues of crucial importance that may have catastrophic impact on the existence of humanity can be determined safely and legitimately by a referendum instead of a revolutionary adjudication. What may stand in the way of holding a referendum may be want of the constitutional sanction for undertaking such exercise in the existing frame work of the country. Our Constitution does not recognise holding of a referendum for deciding fundamental policy issues or the like.
Obergefell v Hodges 576 U.S 644 (2015)
Judicial recognition is the source of sanction for same sex marriage in the US. The declaration of Federal laws banning same sex marriage is violation of due process clause by the U S Supreme Court made the event lawful in the United States. In Austria, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Slovenia, South Africa and Taiwan judicial intervention happened like that in the U.S which gave legal recognition for same sex union.
Constitutional Assembly Debates
When the question of choice of national language was debated in the Constituent Assembly some of the members demanded for a referendum on the issue. But the proceedings of the Constituent Assembly debates indicate that there were no serious takers for the request for referendum to be held on the issue of national language. But during the debates, one member of the Constituent Assembly, Brajeswar Prasad (CAD, September 17, 1949) made a fervent plea for acceptance of Referendum in the Constitution for its amendment particularly when fundamental question of policy is sought to be resolved or reversed. A logically well founded argument was raised by Brajeswar Prasad for accepting referendum as a device for amendment to the Constitution. Taking part in the Constituent Assembly debates, Brijeswar Prasad said:
“Sir, I am in favour of a referendum, because of referendum has many advantages. Referendum is democratic as it is only an appeal to the people, and no democratic government can have any objection to resorting to referendum in order to resolve a deadlock, when there is a conflict between Parliament and provincial governments. Secondly, I am in favour of referendum because it cures patent defects in party Governments. People think that it is too radical a weapon and that a conservative people like ourselves ought not to use it without proper consideration and thought. It is conservative since it ensures the maintenance of any law or institution which the majority, of the electors effectively wish to, preserve. Therefore, it cannot be a radical weapon. Thirdly, sir, referendum is a clear recognition of the sovereignty of the people. Fourthly, it would be, a strong weapon for curbing the absolutism of a party possessed of a parliamentary majority.” (CAD, 17 September, 1949).
The desirability of holding referendum for making fundamental changes in the Constitution was found mentioned, though not accepted, in the famous Keshavnanda Bharati case in the stand alone judgement of Justice Dwivedi (Para 1784).
Referendum in post-Independent era
True that the proposal for referendum as a means for amendment of the Constitution was rejected, still then the reflection of democratic wishes on important policy was sought to be elicited through referendum in the post independent era. In 1946, when the accession of Chandernagore to the territory of India arose in the country, a referendum was held for deciding the wishes of the people of Chandernagore for its choice on accession to India by severance of its sovereignty with France. Two years later, the accession of Junagadh to the Territory of India came to the fore. The people of the princely State were divided over preference to Pakistan or India that subsequently was resolved by holding a referendum wherein the majority agreed for acceding to the territory of India.
When Goa, Daman and Diu went into a battle of preference over the choice of remaining as a Union Territory or merging with State of Maharashtra or Gujarat, a referendum was resorted to as a mode for perceiving the mood and attitude of people. As the Constitution did not sanction for referendum, a Parliamentary legislation as Goa, Daman and Diu (Opinion Polls Act 1966) was passed to give legality for the holding of a referendum. The people of Goa, Daman and Diu opted to remain as a Union Territory. The latest in the line of holding of referendum was in the matter of accession of Sikkim in 1975 which also went into litigation on its legality. The legal sustainability of holding a referendum for ascertaining the wishes of the electorate or the citizenry was accepted by judicial verdict. In 2009, a demand of the people of Udham Singh Nagar to join with Uttaranchal when UP was bifurcated was put to the test of referendum.
The discussions during the framing of the Constitution and also the experience witnessed in the post independent era would give some sort of inspiration and legitimacy for holding a referendum for ascertaining wishes of people on subjects which are very fundamental to their existence, likes and dislikes. On the issue of same sex marriage, if the Government of India makes a request to the Apex court that it intends to hold a referendum on the issue, it would turn out to be a creative resolution of the confounding constitutional issue seized of by the apex court. It will provide a platform for the people of India to engage in creative discussions and deliberations where an informed choice could be taken. The ascertainment of the public wish on a fundamental question of existence of humanity is an essential measure to be followed by a democratically elected Government.
44th Amendment and referendum
The most draconian amendment to the Constitution was the 42nd amendment. The infamous emergency and its continued life depended mostly on the 42nd Amendment. After emergency, when Janata Party Government came to power, the then Law Minister Shanti Bhooshan piloted the 44th Amendment of the constitution which, in fact, defaced and undone all the anti-democratic and anti -constitutional escapades of emergency. By the 44th amendment, Shanti Bhooshan wanted to bring in an amendment to the constitution that provided for Referendum as means for altering constitutional provisions when it touched basic features like secularism, democracy, fundamental rights, free and fair elections, independence of judiciary etc. The said clause was defeated in the Rajya Sabha which sent it back to the Lok Sabha with the changes it mooted.
The most draconian amendment to the Constitution was the 42nd Amendment. The infamous emergency and its continued life depended mostly on the 42nd Amendment
Thus the endeavour to make referendum as a means for amendment of the constitution failed, which if passed, would have certainly changed the free and pure flow of democratic wishes of the people of India in to the governance document of the country. The sovereignty that actually lies with the people of India could have been manifested more emphatically if they themselves had undertaken the exercise of referendum for vital amendment of their Constitution which they only had given unto themselves on the November 26, 1949. But fate favoured the other course which made the three organs to make themselves more autocratic by arrogating power to themselves on days of one’s might.
The sovereign power to amend the Constitution- please better be laid with the citizenry by making suitable provisions in the Constitution like holding referendum on seminal issues like fundamental rights, secularism and the areas where lacunae are felt in the Constitution. The idea of referendum is not something alien to the Constitution or to the framers of the constitution, but was a thing that was conveniently laid to rest which enabled each mighty organ to aggrandise the sovereign power fortuitously to themselves when occasion arose – no matter, be it executive, judiciary or legislature.
Conclusion
Man is born free with absolute freedom. Absolute freedom led to anarchy and promiscuity. It was mankind’s wish which then led to the formation of State and the process of anointing a sovereign. Through Social Contract, man surrendered absoluteness of his freedoms to a sovereign in reciprocity of collective secure societal life offered. Individual rights merged with collective rights and correlative duties, thus ensuring a colourful commune life. Individual fades into ocean of collectivity. As Jeremy Bentham said: every law is an evil, for every law is an infraction of liberty; choose the lesser evil; greatest happiness of the greatest number decides the utilitarianism of law. Viewed thus, Referendum shows will of the Collectivity. Referendum is the real desideratum in the march of constitutional reform process in India. A Referendum followed by a legislation is the ideal solution to the same sex marriage enigma.
(The writer is advocate, Kerala High Court)
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