Same-Sex Marriage and the Fundamental Right to Marry

By Amigos IAS

Why is it in the news?

  • The recent 3:2 Supreme Court verdict against legalizing same-sex marriage in India has sparked widespread discussions and debates.
  • While the Court did not favor the legalization, it acknowledged the discrimination faced by same-sex couples.

More about the news

About the Verdict

  • The majority opinions were given by Justices S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha, while the dissent came from Chief Justice D.Y Chandrachud and Justice S.K. Kaul.
  • One of the primary questions that arose was whether the Constitution bestows a fundamental right to marry. The Bench unanimously determined it does not. However, the Chief Justice and Justice Kaul endorsed civil unions for non-heterosexual couples.
  • Significantly, the verdict affirmed the right of transgender persons in heterosexual relationships to marry under the existing laws, drawing a distinction between gender and sexuality.

 Supreme Court’s Earlier Stance

Several Supreme Court judgments over the years have evolved to understand the concept of the right to marry:

  • Lata Singh v. State of UP (2006): Recognized the right to choose a life partner, particularly in the context of inter-caste marriages.
  • Justice KS Puttaswamy (retd) v. Union of India and others (2017): Upheld the fundamental right to privacy under Article 21, which extended to an individual’s autonomy over personal choices, including the right to marry.
  • Shakti Vahini v. Union of India (2018) & Shafin Jahan v. K.M. Asokan (2018): Both emphasized the freedom of choice in marriage under Articles 19 and 21 of the Constitution.
  • Navtej Singh Johar v. Union of India (2018): While decriminalizing homosexuality, the Court highlighted the freedom of choosing a life partner of one’s choice and the individual’s sexual autonomy.

 International Context

  • Article 16(1) of the Universal Declaration of Human Rights and Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR) affirm the right to marry.
  • However, interpretations have varied, with the UN Human Rights Committee in Joslin v. New Zealand (2002) ruling against recognizing same-sex marriages under the ICCPR.
  • Contrastingly, countries like South Africa and England have passed laws recognizing same-sex marriages, and the US Supreme Court, in Obergefell v. Hodges (2015), ruled in favor of the same.

 Understanding the Verdict

  • The minority opinion emphasized that marriage might have acquired significance due to state regulation, but that does not make it a fundamental right.
  • The majority opinion, penned by Justice Bhat, argued that just because something is significant does not necessarily make it a fundamental right.
  • As per Constitutional law experts, once the right to union is accepted as fundamental, it becomes challenging to deny the right to a matrimonial union.

 Way Forward

  • The verdict serves as a pivotal moment in the journey for marriage equality in India.
  • With the Court leaving it to the legislature, it remains to be seen how the story unfolds in the parliamentary domain.
  • However, the judgement stands as a testimony to the intricate balance of individual rights and societal norms in the largest democracy of the world.

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