Excerpt from Justice Ravindra Bhat’s Judgment
This court has recognized that marriage is a social institution.[1] As elaborated in Part I, marriage existed and exists, historically and chronologically in all of the senses – because people married before the rise of the state as a concept. Therefore, marriage as an institution is prior to the state, i.e., it precedes it. The status is still, not one that is conferred by the state (unlike the license regime in the US).
This implies that the marriage structure exists, regardless of the state, which the latter can utilise or accommodate, but cannot be abolished as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its source is external to the state. That source defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right.
In attempting to analyse the claim to a fundamental right to marry, there are primarily two competing claims about the nature of marriage:
One being that the state should exercise more control over marriage to support and protect “traditional purposes and perceptions” and,
The other, that each individual should have the right to define marriage for themselves and state involvement in marriage should be minimal.
If indeed there is a right to marry unless it is elevated to a right akin to Articles 17, 23, and 24, [which apply to both state and non-state agencies and actors], it cannot be operationalized. These provisions, most emphatically create positive obligations; likewise Articles 15 (3), 15 (4) – and 15 (6), as well as Articles 16 (4), 16 (6) highlight state interest in creating conditions to further the goal of non-discrimination.
Yet, the previous decisions of this court have carefully held such provisions to enable the state, and in a sense oblige it to take measures; but ruled out court mandated policies and laws. In our considered opinion, this is not however, one such case where the court can make a departure from such rule, and require the state to create social or legal status.
What is being asked for by the petitioners is state intervention in enabling marriage between queer or non-heterosexual couples. Civil marriage or recognition of any such relationship, with such status, cannot exist in the absence of statute. The demand, hence, is that of a right of access to a publicly created and administered institution.
There is a paradox here or a contradiction, which runs to the root of the issue and weighs on this court’s mind, heavily – in that the creation of the institution, here depends on state action, which is sought to be compelled through the agency of this court.
Most of the precedents cited contain discussions on how the institution of marriage involves issues of basic importance. Many decisions, including Obergefell v. Hodges (hereafter, “Obergefell”)[2] , recall tradition, to underline that marriage is of utmost significance, and that it underlines the importance of commitment of two individuals towards each other and that it is a foundational relationship of society.
Traditions of marriage per se may not support the basis of recognition of marital relationship between non-heterosexual couples. Many decisions by the US courts, have underlined the rationale for declaring the right to marry a fundamental right as being essential to the orderly pursuit of Happiness (as it appears in their Declaration of Independence) by free persons. This strand of reasoning is apparent from Loving[3] to Obergefell (supra).
This with respect is not sound – at least as applied to state licensing of marriage (as in the US), which is what civil marriage is. The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support.
Some may consider education to be fundamentally important in that they consider nothing less than a postgraduate degree is fundamental; there may be a large section of the people, who consider that access to internet is a fundamental right, and yet others, who may wish that access to essential medication is a fundamental right.
All these cannot be enforceable rights, which the courts can compel the state or governance institutions to provide. These cannot result in demand for creation of a social institution, and in turn creation of status, through a statute. This result – i.e. recognition, can be achieved only by enacted law.
All decisions relied on by the petitioners – K.S. Puttaswamy, Navtej Johar, Shakti Vahini and Deepika Singh v. Central Administrative Tribunal[4] , contain broad observations with respect to individuals’ choice of their partner as also a reference as to non-conventional relationships. Some broad observations are undoubtedly to be found in these judgments they cannot be referenced to hold that a right to marry automatically flows in the manner from the provisions of Part III which the petitioner asserts.
There cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom; we agree on this conclusion arrived at by the learned Chief Justice, and his analysis of Shakti Vahini, Shafin Jahan, Navtej Johar, K.S. Puttaswamy, and NALSA that the constitution does not expressly recognize a right to marry.
Right to ‘union’, or abiding relationship
The conclusion arrived at by the learned Chief Justice is that while there is no express fundamental right to marry, there is a right or freedom to enter into a union [spelt out in Navtej Johar, K.S. Puttaswamy, NALSA, Shakti Vahini, Shafin Jahan, etc.] and that having regard to our constitutional values, which entail respect to the choice of a person whether or when to enter into marriage and the right to choose a marital partner.
The learned Chief Justice also traces this right to enter into an abiding cohabitational relationship to express provisions of Article 19(1)(a), (c), and (e), Article 21, and Article 25.
While we agree, that there is a right – which we will characterise as a ‘right to relationship’ to avoid confusion – we squarely recognise it to fall within Article 21, as already recognised in the afore-cited cases. The right to relationship here, includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity.
They are, like all citizens, entitled to live freely, and express this choice, undisturbed in society. Whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection. This is a natural consequence of this court’s judgments in Navtej Johar, K.S. Puttaswamy, Shafin Jahan and Shakti Vahini.
The learned Chief Justice in a detailed discussion of the ‘goal of self-development’, rights under Article 19 (including the right to freedom of speech and expression, and to form ‘intimate’ associations, to settle in any part of India), Article 21, and Article 25, arrives at the conclusion that the right to union (or right to enter into an abiding cohabitational relationship) can be traced to these express provisions, which in turn enrich this right.
Thereafter, having traced this right to union, it is propounded that the ‘positive’ postulate of fundamental rights (as explained in an earlier section of the draft opinion), necessitates or places a positive obligation on the State to accord recognition to such relationships/unions. This, in our considered opinion, is not necessary.
Further, our point of disagreement is deepened by the discussion in Part D(v) and (vi) in the learned Chief Justice’s draft opinion, prior to the section on ‘the right to enter into a union’- which lays down a theory on the ‘positive postulates’ of fundamental rights and the consequential obligation on the State.
For the reasoning elaborated in Part IV of our opinion, we cannot agree to this characterisation of the entitlement, or any corresponding state obligation to create a status through statute.
Reference
Supriya @Supriyo Chakraborty v. Union of India (2023)
[1] Sivasankaran v. Santhimeenal [2021] 6 SCR 169:“The norms of a marriage and the varying degrees of
legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms,
and religious dictates. Functionally, marriages are seen as a site for the propagation of social and cultural capital
as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social
prestige.”
Likewise, in Indra Sarma v. V.K.V. Sarma [(2013) 14 SCR 1019] this court said that “The institutions
of marriage and the family are important social institutions.” The same decision also recognized the centrality of
tradition, and custom, while emphasizing that “Marriages in India take place either following the personal Law
of the Religion to which a party is belonged or following the provisions of the Special Marriage Act.”
[2] 576 US 644 (2015)
[3] Loving v. Virginia, 388 US 1 (1967)
[4] 2022 (7) SCR 557