The story so far: A five-judge Bench of the Supreme Court on Tuesday in a 3:2 verdict ruled against legalising same-sex marriage in India leaving it up to the legislature to decide if non-heterosexual unions can be legally recognised. The majority opinions were delivered by Justices S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha, and the minority views by the Chief Justice D.Y Chandrachud and Justice S.K. Kaul.
The Bench however unanimously acknowledged that same-sex couples face discrimination and harassment in their daily lives and accordingly urged the government to form a high-powered committee chaired by the Union Cabinet Committee to expeditiously look into the concerns faced by them.
A crucial question before the Bench was whether the Constitution accords a fundamental right to marry, which the Bench unanimously answered in the negative. Although the CJI and Justice Kaul batted for civil unions (a marriage-like setup where the couple enjoys a catena of legal rights and protections) for non-heterosexual couples, opining that such a legal recognition represents a step towards marriage equality — however, the majority found that only an elected legislature is competent to bestow such a status because granting same-sex couples the right to enter into a union will involve changes to a vast range of “legislative architectures” and policies.
The silver lining of the verdict is the Court’s affirmation that transgender persons in heterosexual relationships have a right to marry as per the existing statutory laws or personal laws. The Court noted that the gender of a person is not the same as their sexuality and that a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under marriage laws. Similarly, it said that intersex persons who identify as a man or a woman are also entitled to this right.
The verdict however did not enagage with the legal position of marriage under international human rights treaties and covenants, even though the top Court in the past has relied upon international laws multiple times to interpret domestic legislation and to identify unenumerated fundamental rights.
Against this backdrop, The Hindu decodes what the top Court has previously said about the fundamental right to marry and whether international human rights covenants recognise such a right.
What do prior verdicts of the Supreme Court say about the fundamental right to marry?
The right to marry is not expressly recognised as a fundamental right under the Indian Constitution. Although the institution of marriage is regulated by various statutes in India, its recognition as a fundamental right or a constitutional right has only developed through various decisions of the Supreme Court.
One of the earliest cases that dealt with this issue was Lata Singh v. State of UP (2006) concerning an inter-caste marriage. The Supreme Court held that since the petitioner was a major (above 18 years of age), she had the freedom to choose whomever she wanted to marry and that no law prohibits an inter-caste marriage. Although the ratio specifically applied to the facts of the case, the Court expressly recognised the right to choose a a partner of one’s choice.
In 2014, the Supreme Court took suo motu cognizance of newspaper reports of the gang rape of a 20-year-old Indian woman on the orders of a village court. Such a punishment was meted out because the woman was in a relationship with a man from a different community. The Court categorically ruled that an inherent aspect of Article 21 of the Constitution (right to life and personal liberty) would be the freedom of choice in marriage. It also noted that such offences are the result of the State’s inability to protect the fundamental rights of its citizens.
A nine-judge Constitution Bench in Justice KS Puttaswamy (retd) and another v. Union of India and others (2017), unanimously upheld the fundamental right to privacy under Article 21. In the majority opinion delivered by Justice Chandrachud, it was noted that the right to privacy extends to an individual’s autonomy over fundamental personal choices. Justice Nariman in his concurring opinion specified that the right to privacy includes within its ambit vital personal choices such as the right to abort a foetus, and the right of same sex couples to marry.
Shortly after the Puttaswamy verdict, the Court in Shakti Vahini v. Union of India (2018), observed that when two adults consensually choose each other as life partners, it is a manifestation of their freedom of choice guaranteed under Articles 19 and 21 of the Constitution.
The same year, in Shafin Jahan v. K.M. Asokan, (popularly known as the “Hadiya case”), the Court while referring to Puttaswamy, outlined that the right to marry a person of one’s choice is integral to Article 21 and that such a right cannot be taken away except through a law that is 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,” the Court noted.
In the landmark verdict Navtej Singh Johar v. Union of India (2018), the Supreme Court decriminalised homosexuality by reading down provisions of Section 377 (unnatural offences) of the Indian Penal Code, 1860. While the Court made it clear that consensual and private same-sex activities between adults did constitute an essential part of one’s privacy, it steered clear of venturing into how such rights would operate in the public sphere such as marriage rights. However, the majority opinion by then Chief Justice Dipak Mishra and Justice AM Khanwilkar as well as the concurring opinion by Justice Chandrachud did rely upon Shafin Jahan and Shakti Vahini on the question of freedom of choosing a life partner of one’s own choice and the sexual autonomy of an individual.
Notably, Justice Chandrachud specifically held that members of the LGBTQIA+ community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.” Similarly, Justice Dipak Misra observed that an individual has a right to a union that encompasses physical, mental, sexual, or emotional companionship under Article 21.
What do international precedents say?
Article 16(1) of the Universal Declaration of Human Rights to which India is a signatory stipulates — “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” Similarly, Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by India, affirms the right of men and women of marriageable age to marry and establish a family.
However, interpreting Article 23 of the ICCPR, the UN Human Rights Committee in Joslin v. New Zealand (2002), held that New Zealand has not infracted the ICCPR by refusing to recognise same-sex marriages. It observed — “Use of the term ‘men and women’, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of states parties stemming from Article 23, paragraph 2, of the Covenant is to recognise as marriage only the union between a man and a woman wishing to marry each other.”
This was despite the United Nations Human Rights Council’s (UNHRC) in Toonen v. Australia (1994), widening the contours of ‘sex’ as a protected ground under the ICCPR to include ‘sexual orientation’ making it a non-derogable element of the ICCPR’s right to non-discrimination.
In 2005, the Constitutional Court of South Africa unanimously held that the common law definition of marriage as “a union of one man with one woman,” was incompatible with the Constitution. Consequently, the Civil Union Act of 2006 was enacted permitting consensual marriages of adults irrespective of their sex. Later in 2008, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act was passed to guarantee social security, employment, and taxation benefits to same-sex couples. Similarly, the Marriage (Same Sex Couples) Act 2013 in England and Wales allows same-sex couples to marry in civil ceremonies or according to religious rites.
In 2015, in a watershed moment in American jurisprudence, the US Supreme Court ruled that same-sex couples had the same basic right to marry as heterosexual couples. Obergefell v. Hodges also underscored that denying same-sex couples marriage rights was a “grave and continuing damage” that “serves to demean and subordinate gays and lesbians.”
Why did the Supreme Court rule against the fundamental right to marry?
The minority opinion by the Chief Justice at the outset stated that prior verdicts of the Court did not specifically address the issue of whether the Constitution recognises the right to marry and that this is the first time that the Court has been tasked with this responsibility. It then went on to highlight that 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. Ultimately, it held that there is no fundamental right to marry while at the same time taking into account that the right to marry interfaces with other fundamental rights — the right to life and personal liberty.
Echoing similar sentiments, Justice Kaul in his minority opinion also ruled against the fundamental right to marry while underscoring that “the capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others.”
Justice Bhat, penning the majority opinion, observed that there cannot exist an unqualified right to marry that requires to be treated as a fundamental freedom just because previous judgments of the Court have made certain broad observations with respect to individuals’ choice of their partner. He also highlighted that the 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. Outlining that legal recognition of marriage can only be achieved by enacted law, the majority concluded, “All these cannot be enforceable rights, which the courts can compel the state or governance institutions to provide. These cannot result in demand for the creation of a social institution, and in turn creation of status, through a statute.”
Justice Narasimha authored a concurring opinion, which also agreed with these inferences.
Expert speaks
Referring to the Supreme Court’s verdict in Puttaswamy, constitutional law expert Faizan Mustafa says that the right to decisional privacy or privacy of choice should ideally also include the choice of entering into a matrimonial relationship. He points out that once a right to union has been accepted as a fundamental right, it is difficult to understand why a right to matrimonial union cannot be derived.
“The decision appears to have succumbed to the prevailing ethos of majoritarian morality rather than oft-repeated “constitutional morality,” he wrote, adding that the judgment “would certainly become a classic case of judicial restraint and any government would justifiably celebrate it.”
