Context: Recently some constitutional experts have raised a question on the recent verdict of the Supreme Court of India, with respect to same sex marriage.

• Recently, the SC agreed that there is no fundamental right to marry under the Constitution.

Key Verdict

• An institution cannot be elevated to the realm of a Fundamental Right based on the content accorded to it by law.

• Justice Chandrachud, however, said several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty.

• Entry 5 of the Concurrent List of the Seventh Schedule of the Constitution grants both the State legislature and Parliament the power to enact laws with respect to marriage. 

• In pursuance of the power conferred by Articles 245 and 246 read with Entry 5 of the Concurrent List, Parliament has enacted laws creating and regulating the socio-legal institution of marriage. The State legislatures have made amendments to such laws with the assent of the President, since the subject of marriage is in the Concurrent List.

• The petitioners sought that the Supreme Court recognise the right to marry as a Fundamental Right. This argument was rejected. They said that denial of their right to marry violates Articles 14, 15, 19, 21 and 25. Article 21 encompasses the right to happiness, which includes a fulfilling union with a person of one’s choice.

Why was this argument rejected?

• The SC bench said this would mean that even if Parliament and the State legislatures have not created an institution of marriage in exercise of their powers under Entry 5 of the Concurrent List, they would be obligated to create an institution because of the positive postulate encompassed in the right to marry. 

• Marriage may not have attained the social and legal significance it currently has if the State had not regulated it through law. Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation.

• The Constitution does not expressly recognise a Fundamental Right to marry. Yet, it cannot be denied that many of our constitutional values, including the right to life and personal liberty may comprehend the values which a marital relationship entails. They may at the very least entail respect for the choice of a person whether and when to enter upon marriage and the right to choose a marital partner, the SC bench said.

Legality of Same-Sex Marriages in India

• The Right to marry is a statutory right rather than a fundamental or constitutional right under the Indian Constitution.

• Even though marriage is governed by a number of legislative acts, India’s Supreme Court rulings are the only ones that have led to marriage’s recognition as a Fundamental right.

• The right to marry is inextricably linked to the liberty guaranteed by the Constitution as a fundamental right, as is the ability of each individual to make decisions to exercise one’s liberty to lead a respectful life.

• In the Supriyo Chakraborty case, the Supreme Court of India ruled that marriage is not a fundamental right. Because of this, the Court ruled that same-sex couples cannot get married. Experts believe that this is a wrong decision.

• Nonetheless, the court unanimously ordered that same-sex couples be shielded from harassment. The Court also issued directives to raise awareness among the authorities in this regard and even ordered the formation of a committee to investigate several matters.

• According to SC judgment in Navtej Singh Johar and others v. Union of India (2018), one is entitled to all constitutional rights likewise, LGBTQ people “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” in addition to having “equal protection of the law”.

• SC in the NALSA case held that persons are entitled to identify their own gender. They may be born as males but if they want to identify as females or transgenders, they are entitled to do so. 

• Pursuant to that, the Transgender Persons (Protection of Rights) Act was passed by Parliament which provides the procedure for changing one’s gender and protection against discrimination in diverse establishments, private or state.

Problems faced by the LGBTQ+ community

• Discrimination and Stigmatization: which manifest in various ways, such as employment discrimination, housing discrimination, and exclusion from certain social and religious communities.

• Violence and Hate Crimes: Hate crimes, harassment, and physical violence against LGBTQ+ individuals are ongoing concerns. These incidents have serious physical, emotional, and psychological consequences.

• Mental Health Issues: LGBTQ+ individuals are at higher risk of experiencing mental health challenges, including depression, anxiety, and suicidal thoughts, often because of social isolation, discrimination, and family rejection.

• HIV/AIDS Disparities: LGBTQ+ individuals, particularly gay and bisexual men, continue to be disproportionately affected by HIV/AIDS. Access to healthcare and prevention methods like Pre-Exposure Prophylaxis (PrEP) remains a serious concern.

Human Rights Declaration

• Experts argue that the Court ignored the fact that India was an original signatory to the Universal Declaration of Human Rights (UDHR), the founding document of all human rights in the world.  

• As India is a signatory to the UDHR, and as such, state legislatures and the national parliament must enact laws that support the UDHR. 

• More significantly, Indian courts have interpreted laws and the Constitution in accordance with the UDHR and other international agreements.

• The Supreme Court held, citing Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case, that the right to marry the person of one’s choice is fundamental to Article 21 of the Constitution.

Road Ahead

• The society should spread awareness about the same-sex marriage and to continue advocating for legal recognition and societal acceptance to ensure equal marriage rights for all couples, regardless of their gender or sexual orientation.