So we have it from the Supreme Court of India in Supriyo Chakraborty. There is no fundamental right to marry, it holds. On that account, the Court decided that same sex persons cannot marry. In my view this is a wrong decision.
However, to the credit of the Court, it directed, unanimously, that same sex couples have to be protected from any harassment. The Court also passed directions to sensitise the authorities on this behalf and even directed the setting up of a committee to look into a number of issues. However, the flaw is fundamental which needs to be corrected, sooner than later.
To understand Supriyo Chakraborty, we need to contextualise it. In 2009, the Delhi High Court read down Section 377 of the Indian Penal Code (IPC) in Naz Foundation (Naz). That was set aside in Suresh Kumar Koushal by the Supreme Court in 2013, but ultimately upheld Naz in Navtej Singh Johar in 2018. Section 377 IPC, a law made by the British, that criminalised sex between non-heterosexual couples was punishable with 10 years imprisonment.
