Michael Sandel, a renowned philosopher, highlighted moral questions in Indian society, particularly in same-sex marriage, and criticized contemporary liberalism. The Supreme Court of India must consider Sandel’s perspective.
Concept of Bracketing Moral Issues
- Bracketing moral issues involves temporarily suspending personal or societal beliefs in public discourse to promote fairness and inclusivity. In same-sex marriage, this involves a broader perspective that prioritizes equal rights and fairness for all individuals, regardless of their sexual orientation.
Supreme Court’s Neutrality and Constitutional Morality
- The Supreme Court of India must maintain neutrality in moral matters, ensuring equal concern for all individuals regardless of social or personal morality. It does not take sides on moral issues or judgments on practices or institutions, focusing on legal rights and protections within the Constitution.
- Constitutional morality guides the Supreme Court’s decisions, aligning with the Constitution’s values and principles. It emphasizes equal concern for all individuals, regardless of their sexual orientation, and upholding individual rights.
- Neutrality and constitutional morality guide the Court in protecting citizens’ rights, particularly in cases related to same-sex marriage, ensuring that individuals’ rights are not violated due to their sexual orientation.
- The Court must balance societal values and perceptions of marriage with equality and individual rights, navigating tensions between same-sex couples’ rights and traditional heterosexual marriage. Its decision-making process involves careful examination of legal and moral principles, considering individual rights and societal values.
Neutrality’s Obstacles
- When the Court is presented with issues involving serious moral and ethical questions, neutrality becomes difficult. Same-sex marriage is one such case in which the Court must strike a balance between individual rights and community values.
- Public Opinion and Backlash: When public opinion and societal attitudes substantially favour or oppose a certain moral stance, neutrality might be tested. In circumstances such as same-sex marriage, when societal norms and traditional beliefs may conflict with equal rights for LGBTQ+ people, the Court’s neutral approach may meet resistance, backlash, or criticism from various segments of society.
- Judicial Activism vs. Restraint: Neutrality might be mistaken for judicial restraint, in which the Court refrains from actively establishing societal or moral norms. However, detractors may claim that the Court’s authority to address societal challenges and promote social justice should not be limited by its neutrality.
- Interpretation of Constitutional Morality: The concept of constitutional morality can be interpreted in a variety of ways. Different judges may have different interpretations of what constitutes constitutional morality, resulting in differing views on how neutrality should be used in moral problems.
- Maintaining Consistency: Applying neutrality consistently across diverse circumstances and contexts can be difficult. The Court must ensure that its rulings are not arbitrary or influenced by outside considerations.
- Individual Rights and Societal Values: The Court must strike a difficult balance between safeguarding individual rights and upholding societal values. Determining the point at which cultural values may infringe on individuals’ rights is a difficult issue that requires significant research and investigation.
Two primary approaches: equality and intrinsic value in terms of same sex marriage
Equality:
- Equal Rights: According to the equality perspective, denying same-sex couples the right to marry is a form of discrimination. It emphasises the importance of all persons, regardless of sexual orientation, having equal access to the institution of marriage.
- Anti-Discrimination: Equality advocates claim that limiting marriage to heterosexual couples fosters unfair and unequal treatment. They think that marriage should be founded on individuals’ equal respect and dignity, regardless of their sexual orientation.
- Human Rights: From the standpoint of equality, same-sex marriage is a question of human rights and civil liberties. It claims that barring same-sex couples the right to marry violates their basic rights to equality, privacy, and free speech.
- Legal Protection: Recognising same-sex marriage as a matter of equality would offer same-sex couples with legal protections and benefits such as inheritance rights, access to healthcare, and parenting rights. Its goal is to provide same-sex couples with the same legal and societal benefits as heterosexual couples.
Intrinsic Value:
- Social Importance: The intrinsic value approach emphasises the social importance and significance of marriage as an institution. It contends that marriage provides as a foundation for family, procreation, and societal stability.
- Cultural and Traditional Values: Proponents of intrinsic value emphasise marriage as a cultural and traditional union between a man and a woman. They say that sustaining the traditional definition of marriage is critical for the preservation of societal values and traditions.
- Stability and Well-Being: According to the intrinsic value approach, the conventional institution of marriage contributes to individual and family stability, societal order, and well-being. It implies that departing from this customary perspective may have societal ramifications.
- Preservation of Honorific Value: Those who advocate for intrinsic value claim that extending marriage to same-sex couples may jeopardise the honorific worth of marriage. They argue that if non-traditional unions are included, the distinctive significance and cultural meaning of marriage will be weakened or destroyed.
Citizen Initiatives and Engagement in the Future
- Citizen Initiatives: Citizen initiatives serve as a platform for grassroots mobilisation, allowing individuals to band together and push for social change. Grassroots movements can raise awareness, gain support, and influence public opinion in favour of progressive principles like same-sex marriage.
- Public dialogue and Dialogue: Citizen participation promotes open and inclusive public dialogue on moral issues. It encourages people from all walks of life to engage in talks, express their ideas, and engage in constructive dialogue in order to establish common ground and mutual understanding.
- Strengthening Democracy: Citizen initiatives help to strengthen democracy by encouraging civic participation, engagement, and active citizenship. Citizens may construct a more inclusive and equitable society by actively participating in conversations and decision-making processes.
- Studying International Case Studies: Learning from successful citizen initiatives in countries like as Ireland and Finland, where significant progress on LGBTQ+ rights has been made through public participation, can inspire and guide such efforts in India in the context of same-sex marriage.
- Strengthening Democracy: Citizen initiatives help to strengthen democracy by encouraging civic participation, engagement, and active citizenship. Citizens may construct a more inclusive and equitable society by actively participating in conversations and decision-making processes.
- Studying International Case Studies: Learning from successful citizen initiatives in countries like as Ireland and Finland, where significant progress on LGBTQ+ rights has been made through public participation, can inspire and guide such efforts in India in the context of same-sex marriage.
Conclusion
- As India’s Supreme Court considers same-sex marriage, it is critical to recognise the limitations of a strictly liberal framework and engage in a broader public discourse. Embracing public engagement and developing inclusive debates would assist ensure long-term and progressive improvements that are consistent with Indian society’s evolving ideals and ambitions.
Source: https://m.economictimes.com/news/india/bar-council-of-india-passes-resolution-opposing-legal-recognition-of-same-sex-marriages/articleshow/99710930.cms