Right to marry is entitled to constitutional protection: Supreme Court | Latest News India - Hindustan Times
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Same-sex marriage hearing: Right to marry is entitled to constitutional protection, says SC

By, New Delhi
May 10, 2023 12:25 AM IST

The Constitution bench emphasised that all the core constituents of a marriage can be traced to one or the other constitutional values

The Supreme Court on Tuesday called it “far-fetched” to argue that the right to marry is not a constitutional right, adding that marriage and its incidents cannot be limited to a mere statutory recognition but are entitled to constitutional protection.

The bench will continue hearing the matter on Wednesday. (HT)
The bench will continue hearing the matter on Wednesday. (HT)

Also read: ‘Homosexuality a disorder, will rise if same-sex marriage legalised’: RSS body survey

Hearing a clutch of petitions that have demanded legal recognition for same-sex marriages, the Constitution bench emphasised that all the core constituents of a marriage can be traced to one or the other constitutional values and therefore, it may not be right to contend that people cannot approach a court pressing their constitutional right to marry.

“To say that the right to marry is not a constitutional right would be far-fetched. Look at the core elements of marriage. Each one of them has a constitutional value...So, we must accept as a basic proposition that marriage itself is entitled to constitutional protection. It is not just a matter of statutory recognition. Once we have crossed that threshold, the next issue is if heterosexuality is a core element of marriage,” said the bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud. The bench also comprised justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.

The occasion for the court to underscore the nature of the right to marry arose as senior counsel Rakesh Dwivedi, representing the Madhya Pradesh government, argued that there is neither a fundamental right to marry nor is there a right to seek recognition of such a marriage. According to Dwivedi, societal acceptance, age-old traditions and cultural values predating the Constitution have recognised a marriage only between heterosexuals and that the top court must not issue a declaration regarding same-sex unions which could prove to be “vague, amorphous and incapable of being executed”.

To this, the bench replied that the India Constitution itself is a “tradition breaker” in containing a bundle of provisions relating to equality, reservation and banning untouchability that seemed to change the traditions. “Traditions are there to the extent they are there. But at the same time let us be alive to the fact that the concept of marriage has evolved...Apart from heterosexuality, there may be other elements of that relationship which must find protection within law,” it added.

The court went on to add that there are three layers to the issue of recognition. “First, the legislative recognition which undoubtedly has to emanate from Parliament...no doubt about it. Second is administrative and civil incidents and there, the government has taken the first step forward and they have constituted a committee chaired by the cabinet secretary. Third, how do you give meaning to the content of constitutional values? Even if we accept your submission, there is, even in this area, some element of constitutional jurisprudence for the court to evolve,” it told Dwivedi, who urged the bench not to issue any declaration that may not be executable.

To this, the bench retorted: “Is common law seeped into our bones to an extent that everything we say needs to be executed through contempt or other proceedings? Is it not sufficient that the court says that this is the state of affairs? We are not just talking about the constitutional branches but also talking about the society. How it is assimilated is not up to us.”

It added that even a declaration and recognition of a right may have a significant impact. “The order of the court is in the context of recognising the existence of a right. It’s thereafter for the legislature. The court may not be able to take actions to implement it. Once there is a recognition and the court stops there, it’s one of the important things,” observed the bench.

It also prima facie disagreed with Dwivedi’s submissions that the court cannot issue a declaration without specifying the manner and the extent of securing those rights. “The court has in the past issued declarations which postulate enactment of legislation by Parliament...like right to clean environment, health, right to education. Therefore, at the core, to say that the court cannot issue a declaration would not be correct. Equally, we take your point that don’t go to an area where you declare a right to marry,” added the bench.

Senior advocate Kapil Sibal, representing Muslim body Jamiat Ulama-I-Hind, cautioned the Supreme Court against foreclosing a discussion in Parliament by issuing a declaration on same-sex unions. Even as he said that the Constitution bench should grant a recognition to the sexual identity of LGBTQI+ community, Sibal argued that same-sex unions could get recognition and rights only through a legislation and that a declaration by the court in vacuum may not serve a purpose.

Also read: Same-sex marriage hearing highlights: Same sex couple not imported: CJI

At one point, the bench said that the society may not be willing to accept same-sex unions but there is another perspective to this. “It’s like firing a blank. You allow it but outside, there is no acceptance. But the counterpoint to that is it lends us (petitioners) dignity in our own eyes. That lends us acceptance in our own society and among parents and those who are willing to accept us. This is also a point that you will have to deal with,” it told Sibal.

The senior counsel on his part said that decriminalisation of homosexuality is a judgment to celebrate but the court must remain mindful of “overreach” in matters that require Parliament to ponder over and set the stage for moving forward appropriately.

Opposing the petitions, senior advocate Arvind Datar urged the bench not to hold that there is a fundamental right to marry since that would amount to declaring a law and preventing Parliament from going into an issue which falls under the domain of both the Centre and states.

Datar added that the court cannot alter the language of the Special Marriage Act because that would not only change the fabric of a legislation that was brought in with a stated objective, but it would also lead to a collateral damage and impact on several provisions in other statutes.

The bench will continue hearing the matter on Wednesday.

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