Same-Sex Marriage and the Fundamental Right to Marry

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.

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.

AMIGOS IAS