New Delhi: It would be far-fetched to say that there “would be no fundamental right to marry under the Constitution”, the Supreme Court observed Tuesday as it heard a batch of petitions demanding marriage equality for same-sex couples.
A five-judge bench led by Chief Justice of India D.Y. Chandrachud made these remarks when senior advocate Rakesh Dwivedi, appearing on behalf of the Madhya Pradesh government, said the Constitution only gives a fundamental right to form relations and associations that can be regulated.
The MP government is opposing the petitions, which demand marriage equality for same-sex couples under the Special Marriage Act (SMA). The other judges on the bench are justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and P.S. Narasimha.
Dwivedi told the court that marriage as an institution has emerged over a long period of time and as a result of “society’s evolution”.
“To call an association a marriage is something that hasn’t happened overnight, but over a course of years,” he said.
CJI Chandrachud, however, observed that the core elements of marriage are protected by constitutional values.
“Marriage itself postulates the right of individuals to cohabit. Marriage accompanies with it the notion of existence of a family unit, something which directly owes its existence to the constitutional values,” he said.
He added that while procreation is a very important ingredient of marriage, it’s not a condition for social acceptance of marriage or its legal validity because people may not want to have children.
“Marriage, in a significant way, is exclusionary, since two people who come together to cohabit are entitled to exclude everyone else from that area of marriage,” the CJI said.
Justice Bhat too voiced similar views.
“With the court, society and polity placing an ‘individual at the highest pinnacle’ and carving out many personal rights, such as right to personhood, right to choose and right of being left alone, privacy and autonomy, the core question left is if a person has a right to marry,” he said. “Does the right to life have a concomitant right to marry?”
Dwivedi, however, replied that the foundation of the right evolved from customary and personal and religious laws. Right to marry, the senior counsel contended, was for heterosexual couples. “Though they have been founded on personal laws, the legislature has brought about certain changes to regulate it (marriage),” he said.
‘Will close scope for parliamentary debate’
Dwivedi was of the view that the right to marriage, which existed as part of social institutions, will be accommodated in the right to association, albeit in a particular manner.
However, Bhat felt that the Constitution has not granted anything and only recognises and guarantees.
“We are free citizens, we have taken this onto ourselves. So, the right to speak, associate, everything is part of our inherent rights. Even legislation has only recognised them,” the judge pointed out. In the same vein, he added, the right to marry is also inherent. “If we say the right of marriage is inherent, it is part of the Constitution,” the judge added.
The Constitution, he went on to say, has also been a tradition breaker.
“What was held hallowed in our society in terms of caste, we made a conscious break and said that we don’t want it. We even went to the extent of outlawing untouchability in the Constitution. I don’t think there is any Constitution in the world, which says this shall be an offence as part of its fundamental right,” the judge said.
Continuing to express his views, Bhat said traditions created the institution of marriage but at the same time, it was important to recognise that the concept of marriage had evolved.
But according to Dwivedi, the reforms that have happened were by the legislature and they were to protect the interest of women and children.
“Hindu marriages are considered as a sanskar, sacrament. The fact that divorce has come in, some modifications came in,” he said.
Senior advocate Kapil Sibal, appearing for Muslim organisation Jamiat-Ulema-i-Hind, argued that the demand for a law by the petitioners requires public discourse, which includes debate in Parliament, deliberations in families and society.
He also disagreed with the petitioners that Parliament wasn’t going to do anything in this regard. Any declaration by the court will close the avenue for debate in Parliament, he argued, saying that this was a dangerous proposition.
“There will be no scope of debate in Parliament once you declare that it’s a fundamental right and that it has to be recognised,” Sibal said, maintaining that it was up to the legislature to ponder over the issues pending before the court.
Earlier, during the argument, the bench had remarked that there were instances where the court had given declarations, such as right to education and right to clean environment. The court commented that judgements making such declarations had postulated that the legislature should frame a law to implement those declarations.
(Edited by Uttara Ramaswamy)
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