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Source: This post has been created based on the article “No Indian has the right to marry” published in The Indian Express and the article “The Court’s ‘no fundamental right to marry’ is wrong” published in The Hindu on 23rd October 2023.
UPSC Syllabus Topic: GS Paper 2 Social Justice – Mechanisms, laws, institutions and bodies constituted for the protection and betterment of vulnerable sections.
GS Paper 1 Indian Society – Diversity of India.
News: This article discusses the issues with the recent Supreme Court judgment on same-sex marriages in India in the context of the denial of the fundamental right to marry.
Rest of the aspects of this news have been already covered in detail in the following article: https://forumias.com/blog/same-sex-marriage-verdict-implications-explained-pointwise/
What were the outcomes of the judgment?
In the Supriya Chakraborty v Union of India case, a 3-2 majority favoured the refusal of legal recognition to unions other than heteronormative ones. The bench asserted that there is no fundamental right to marriage under the Indian Constitution.
What are the jurisprudence issues with the judgment?
1) Constitutional morality not considered: Prevailing ethos of “majoritarian morality” were given precedence over “constitutional morality”.
In Navtej Johar Case (2018), CJI DY Chandrachud had held that “the Court has to be guided by the conception of constitutional morality and not by societal morality”.
2) Refusal of the Court to innovative: It cited the limits of its jurisdiction and emphasised the legislative authority over such matters.
3) Extensive scope of Article 32 and the judiciary’s duty to safeguard citizens’ rights not exercised by the judiciary.
4) Restriction of the scope of the Puttaswamy judgment (2017): The privacy judgment upheld privacy of choice, which should ideally include the choice of entering into a matrimonial relationship.
5) Departure from judiciary’s liberal interpretation of Article 21.
6) Against the right to life: The conservative position considers procreation to be the primary purpose of marriage. Hence, the right to marry should be an extension of the right to life.
7) UDHR ignored: India is an original signatory to the UDHR. The Indian Constitution and courts have also been greatly influenced by the UDHR.
For instance, in the Maneka Gandhi case, the Court relied on Article 10 of the UDHR to include principles of natural justice in the administrative process.
8) Indian constitutional jurisprudence ignored: Jurisprudence of the courts interpreting constitutional provisions and including new rights in a liberal and expansive manner was not put into practice in this case.
Question for practice:
Illustrate the issues with the recent Supreme Court ruling regarding the denial of the fundamental right to marry for same-sex couples in India.
