On 17th October, the Indian Supreme Court delivered a historic judgment on the recognition of Same Sex Marriage. The Indian Supreme Court refused to recognize the same sex marriage.
There was a bench of five judges, two judges Justice Dhananjay Yashwant Chandrachud who is also current CJI of India, and Justice Kishan Kaul gave their separate judgment in favor of Same Sex Marriage, but, the other three Judges, Justice Ravindra Bhatt, Justice Narsimha, and Justice Hima kohli pronounced their judgments against the recognition of Same Sex Marriage.
In this case, there were 21 Petitions, the grievance of the petitioners (who were members of the LGBTQIA+ community) was not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class.
The petitioners claimed that they are discriminated on a more formal (and visible) level. The petitioners contended that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage.
The petitioners invoked the equality code of the Constitution to seek legal recognition of their relationship with their partner in the form of marriage. The petitioners did not seek exclusive benefits for the queer community, which are unavailable to heterosexuals. They claim that the State ought to treat them on par with the heterosexual community.
While analysing the case, Justice DY Chandrachud examine the institution of marriage, the involvement of State in regulation the question of marriage, and then the question of right to marry. The issue was discussed as follows:
Have the courts recognised the right to marry?
The petitioners submit that this Court has held that the Constitution guarantees the right to marry in Shafin Jahan v. KM Ashokan (2018) and Shakti Vahini v. Union of India (2018).
In Shafin Jahan (supra), Ashokan, the father of Akhila alias Hadiya moved a habeas corpus petition before the High Court of Kerala with the apprehension that his daughter was likely to be transported out of the country. During the course of the hearing, the High Court was informed that she had married the petitioner.
However, the High Court allowed the petition and directed that,
(i) Hadiya shall be escorted from the hostel in which she was residing to the house of the father; and
(ii) the marriage between Hadiya and Shafin Jahan was void.
The High Court observed that twenty-four year old Hadiya was capable of being exploited and that the Court is concerned with her welfare in exercising parens patriae jurisdiction. On appeal, Supreme Court set aside the judgment of the High Court.
Dipak Misra, C.J. writing for the majority observed that Hadiya was entitled to choose a partner of her choice and curtailing the expression of choice would amount to clipping a person’s identity.
One of us (D.Y. Chandrachud, J. as he then was) authoring the concurring judgment observed that the High Court’s exercise of jurisdiction to declare the marriage null and void amounted to judicial overreach. The Court observed that the choice of a partner, whether within or outside of marriage lies in the exclusive domain of the individual, and that the State cannot dictate or limit the freedom to choose a partner.
In this context, the Court observed that the right to marry a person of one’s choice is integral to Article 21 of the Constitution. The relevant observations are extracted below:
“84. […] The absolute faith of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propogate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an areas where individual autonomy is supreme.
The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the State not the law can dictate a choice of partners or limit the free ability of every person to decide on these matters.
86. The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. […] Society has no role to play in determining our choice of partners. […]
88.[…] Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the State. Courts as upholders of constitutional freedoms must safeguard these freedoms.” (emphasis supplied)
In Shakti Vahini (supra), proceedings under Article 32 of the Constitution were instituted seeking directions,
(i) to State Governments and the Central Government to initiate steps to combat “honour crimes” or caste-based or religionbased murder and submit a national plan of action and a State plan of action to curb such crimes;
(ii) to direct State Governments to constitute special cells in each district; and
(iii) to launch prosecutions in each case of “honour killing” or caste- based or religion-based murder.
This Court disposed of the writ petition by directing preventive steps, remedial measures, and punitive measures to curb honour killings. Writing for a three-Judge Bench, Dipak Misra, C.J. observed that the ability of an individual to make choices is an inextricable part of dignity and
“that when two adults choose to marry out of their own volition […] they have a right to do so.”
In Justice KS Puttaswamy (9J) v. Union of India (2017), Justice Nariman (in his concurring opinion) observed that the right to privacy extends beyond the right to be let alone to recognising the vital personal choices such as the right to abort a fetus, and the right of same sex to marry.
In Navtej Johar v. Union of India (2018), this Court while decriminalising homosexuality did not hold that the Constitution recognises a right to marry. Dipak Misra, C.J. writing for the majority held that an individual has a right to a union which encompasses physical, mental, sexual or emotional companionship under Article 21 of the Constitution.
In Shafin Jahan (supra) and Shakti Vahini (supra), the issue before this Court was whether State or non-State actors could interfere with a person’s choice of whom to marry. The law prescribes certain essential conditions for a valid marriage. In both these cases, this Court dealt with situations where State or non-State actors prevented a couple which was otherwise entitled to marry, from marrying.
In the case of Shafin Jahan (supra), the restriction was sought to be imposed because the partners belonged to different religions and in Shakti Vahini (supra), this Court dealt with the issue of restraints placed by the society on the exercise of a person’s right to marry a person of a difference caste and religion.
In Shafin Jahan (supra) this Court held that religion and caste cannot be impediments in the exercise of a person’s right to choose whom to marry. In Shafin Jahan (supra) this Court held that no State or non-State entity can interfere with their right to marry a person of their choice.
Neither the majority in Justice KS Puttaswamy (9J) (supra) nor the majority in Navtej (supra) hold that the Constitution guarantees the right to marry. Moreover, the opinion of Justice Nariman in Justice KS Puttawamy (9J) (supra) only made a passing reference to the right to marry. It did not trace the right to marry to any of the entrenched fundamental rights nor did it comment on the scope of such a right.
In Justice KS Puttaswamy (9J), the issue before this Court was whether the Constitution recognises a right to privacy. Thus, this case did not address the issue of whether the Constitution recognises the right to marry. It now falls upon this Court for the first time to decide if the Constitution recognises such a right.
There is no fundamental right to marry
The petitioners relied on the judgment of the US Supreme Court in Obergefell v. Hodges, Director, Department of Health (4 576 US 644 (2015) in which the right to marry was recognised as a fundamental right.
In Obergefell (supra), the Supreme Court of the United States held that the Fourteenth Amendment of the Constitution of the United States imposes a positive obligation on the State to license a marriage between two people of the same sex.
In Michigan, Kentucky, Ohio, and Tennessee, marriage was defined as a union between one man and one woman. The petitioners (who were same-sex couples) claimed that their exclusion from the institution of marriage violated the Fourteenth Amendment of the US Constitution.
The petitioners filed suits in US district courts in their home States. The district courts ruled in their favour. On appeal, the United States Court of Appeal consolidated the cases and reversed the judgment of the District Court holding that the State has no constitutional obligation to license same-sex marriages or to recognise same-sex marriages performed out of State.
The issue before the US Supreme Court was not whether the Constitution recognises the right to marry but whether the Fourteenth Amendment requires a State to license a marriage between two people of the same-sex. Various decisions of the US Supreme Court had already recognised the right to marry.
Justice Kennedy (writing for the majority) observed that the right to marry consists of the following four components:
(i) the right of choice;
(ii) the protection of intimate association by supporting the union of two persons;
(iii) safeguards for children and families, and
(iv) cornerstone of social order because marriage is the basis for governmental rights, benefits, and responsibilities.
The opinion of the majority held that the components of marriage are not exclusive to heterosexual couples. Thus, the State by not recognising a same-sex union (which is legal) and by not granting benefits which accrue from a marriage was held to be treating same-sex couples unequally, violating the equal protection clause.
Earlier judgments of the US Courts had held that marriage is a civic right because it is fundamental to existence and survival, is part of the fundamental right to privacy, and essential to the orderly pursuit of happiness. It was also held that without the right to marry, one is excluded from the full range of human experience and is denied “full protection of the laws for one’s avowed commitment to an intimate and lasting relationship.” The jurisprudence which has emanated from the US Courts indicates that the right to marry is recognised as a fundamental right because of the benefits (both expressive and material) attached to it.
Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution grants both the State legislature and Parliament the power to enact laws with respect to marriage. The provision reads as follows:
“Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.” (emphasis supplied)
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 seek that the Court recognise the right to marry as a fundamental right.
As explained above, 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. This argument cannot be accepted.
As explained in the previous section, the State through the instrument of law characterises marriage with two constituent elements: the expressive component and the material component. 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.
This Court in Justice KS Puttaswamy (9J) (supra) while holding that privacy is a fundamental right was not guided by the content given to privacy by the State. This Court was of the opinion that if the right to privacy is not secured, the full purport of the rights entrenched in the Constitution could not be secured.
Similarly, this Court in Unnikrishnan (supra) held that the right to education is a fundamental right. The right to education was derived from the provisions of the Directive Principles of the State Policy and their centrality to development of an individual.
Entry 25 of the Concurrent list authorizes Parliament and State legislatures to enact laws on “education.” The State in pursuance of this power has enacted numerous legislations relating to education such as laws establishing and regulating universities and colleges. However, the right to education was held to be a fundamental right, not because of any statute or law but because of its centrality to the values that the Constitution espouses.
The arguments of the petitioners that the Constitution recognises a right to marry is hinged on the meaning accorded to marriage by statutes, which cannot be accepted.
The Constitution does not expressly recognize a fundamental right to marry. Yet it cannot be gainsaid 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.
Supriya @ Supriyo Chakroborty v. Union of India (2023)
 Skinner v. Oklahoma, 316 U.S 535
 Zablocki v. Redhail, 434 U.S 374
 Loving v. Virginia, 388 US 1
 Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass.2003)