By Mahinda Pathirana –

Mahinda Pathirana

The observation that “the very notion of a man and a woman is not an absolute based on genitals” made by Chief Justice Dhananjaya Yeshwant Chandrachud of the Supreme Court of India spread like wildfire all over India. The Chief Justice made the above statement while presiding over a five-judge constitutional bench that heard petitions from different parties on same-sex marriages. In Sri Lanka too, recently, a private member’s proposal has been submitted to the Parliament to legalize same-sex relations. In that background, it is important to follow developments in the neighborhood related to this subject. In this article, I am not only discussing the above single issue, but also the role of the judiciary in the recent past, which goes beyond its traditional limits to build an oligarchy and how it will affect the rest of the organs of the nation state. 

With the judge’s controversial statement, the discussion related to this in India has taken a new leap and has become a hot topic in the country’s legal, social, media circles. The petitioners are calling for legal validation of same-sex marriages. Laws that had criminalized same-sex relations in India have already been removed. That is, same-sex relationships are no longer considered a crime in India, but those of marriages are not allowed.

The full statement of the Chief Justice of India is as follows. “There is no absolute concept of a man and absolute concept of a woman at all. It is not the question what your genital are. It is far more complex, that is the point. So, even when the Special Marriage Act says man and woman, the very notion of man and woman is not an absolute based on genitals.”

The Chief Justice’s observation is heroic and radical at first glance. At the same time, it goes without saying that it is also popular. On the other hand, it is also a very serious statement. Because it simultaneously challenges the very notion of state as well as many of its unarguable foundations. We are focusing on that here.

Many of the systems we have built into our societies have foundations upon which they depend. They are usually unchallenged. Woman and man are such a basic foundation. We also have a personal and social view of that distinction. On that basis, marriage, raising and raising children, family as the smallest organization in society, and so on, we have many constructions that we usually take as normal, i.e., take as non-controversial. The question is, what happens to those constructions once they are removed from the very foundation on which all those rest.

The construction that male and female is not absolute mean that it is fluid and has no definite shape. In other words, it says that those constructions are relative. If that is the case, it will open up to us a territory we have not yet entered. Sometimes it is a territory we do not know yet. Can the judiciary take the responsibility for navigating that unknown zone on behalf of the state? 

Solicitor General Tushar Mehta represented the central government of India at the petition hearing. He argues that if the court, on the basis of the above, allows same-sex marriages, at the same time, the court will invalidate a number of legal articles in the law book. Citing the Code of Criminal Procedure, the Attorney General argues that under existing law, for example, calling a woman for an investigation cannot be done after a certain period of time. By that logic, a man would claim that he is not a man, even though he has male genitalia. The Attorney General is of the view that a man can use the same ground if necessary to escape the legal scrutiny.

In fact, the argument of the Attorney General who appeared for the government is a practical one. In a society where social institutions are divided on the basic binary of female and male, destabilizing that foundation is tantamount to unraveling everything that rests on it. According to the opinion of the Chief Justice, one has the ability to appear as a man at one time and as a woman at another time. He should state that he thought of himself as a man the other day but now he thinks of himself as a woman. In the third case, it is not impossible to turn back completely.

Needless to say, the trouble that happens after such specific foundations are deconstructed. Even the courts do not know where it will end. Accordingly, the Chief Justice’s opinion, no matter how heroic, raises serious doubts about its implementation at the practical level. In that background, the Attorney General emphasizes that this subject is not one that can be remedied through the courts, but a matter that falls within the purview of the Parliament.

The reply of the court to law officers’ argument was that “there is always change in the society and it begins from somewhere.” It is true that change should happen. But certainly, it is not the court that can trigger it. It is the assembly of people’s representative that has the power to do so. 

In the past too, there are instances where the courts have gone to make judgments or observations on matters outside their jurisdiction. There are such examples in our country as well. In 2008, the court’s decision on fuel prices created a lot of controversy. The situation also led to a conflict between the judiciary and the executive. Ruling on commodity prices is clearly not a judicial function. The price of fuel is determined by the government. It is a government policy based economic conditions. A court does not have the expertise or power to implement public policy. Those matters are closely intertwined with the economic process. It is common knowledge that economic factors do not change just because a court lowers or increases the price of fuel.

In a democratic country, three organs namely the Parliament, the Executive and the Judiciary have been introduced, and none of these organs can act beyond their authority. To do so would be, if nothing else, to plunge the state into chaos and apocalypse.

Especially in the South Asia and Africa region, we can observe the trends of courts exceeding their powers. The fact that there is any foreign political interference is also a matter of discussion. There are accusations that powerful countries in the world are using judicial institutions to destabilize small countries in the periphery. There is potential to infuse such ideas into judiciary through various training programs.

Countries like ours also need broad-minded people in judicial systems, who can understand and act on the whole picture. They never make decisions out of their egoistic minds, and they have a proper understanding of their territory. We should wish for such people of integrity.

Accordingly, the dialogue between India’s judiciary and government seems to be important to us in many ways. The importance is not merely based on what the court’s decision will be regarding same-sex marriage, which is the scope of the petition hearing, but how the decision will define the relationship between the legislature and the judiciary, and whether the state can continue in its current form following that definition.

*Adopted from the writer’s article in Sinhala to daily Lankadipa on 21^st April 2023.