New Delhi: It would be a stretch to say that “there will be no fundamental right to marry under the Constitution”, the Supreme Court observed on Tuesday as it heard a batch of petitions seeking marriage equality for same-sex couples.
A five-judge bench headed by Chief Justice of India DY Chandrachud told senior advocate Rakesh Dwivedi, appearing for the Madhya Pradesh government, that the Constitution only gives a fundamental right to form relationships and associations which can be regulated.
The MP government is opposing petitions that seek marriage equality for same-sex couples under the Special Marriage Act (SMA). The other judges of the bench are Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha.
Dwivedi told the court that marriage as an institution has emerged over a long period of time and as a result of the “evolution of the society”.
He said, “Calling an association a marriage is something that has not happened overnight, but has happened over many years.”
CJI Chandrachud, however, observed that the basic elements of marriage are protected by constitutional values.
“Marriage itself confers upon individuals the right to cohabit. Marriage brings with it the notion of existence of a family unit, something which is directly bound to the existence of constitutional values,” he said.
He stated that while procreation is a very important component of marriage, it is not a condition for social acceptance of marriage or its legal validity because people do not want children.
The CJI said, “Marriage is, in a significant way, exclusionary, because two people who come together to live together are entitled to exclude everyone else from that area of marriage.”
Justice Bhat also expressed similar views.
“With courts, society and politics placing the ‘individual at the top’ and carving out a number of individual rights, such as the right to personhood, the right to choose and be alone, privacy and autonomy, the main question remains whether A person has a right to marry,” he said. “Does the right to life have a concomitant right to marry?”
However, Dwivedi replied that the foundation of authority evolved from customary and personal and religious laws. The right to marry, argued the senior counsel, was for heterosexual couples. “Though they are founded on personal laws, the legislature has made some changes to regulate it (marriage),” he said.
‘Will close the scope for parliamentary debate’
Dwivedi was of the view that the right to marriage, which existed as part of social institutions, would be accommodated in a special way, the right to union.
However, Bhat felt that the constitution did not provide anything and only recognized and guaranteed.
“We are free citizens, we have taken it upon ourselves. So right to speak, associate, everything is part of our inherent rights. Even the law has only recognized them. He said that similarly the right to marry is also vested. The judge said, “If we say that the right to marry is enshrined, then it is part of the Constitution.”
He said that the constitution has also been breaking tradition.
“In the matter of caste which was considered sacred in our society, we made a conscious pause and said we do not want it. Even we declared untouchability illegal in the constitution. I don’t think there is any constitution in the world which says that it would be an offense under its fundamental right.
Bhat expressed his view that traditions created the institution of marriage but at the same time, it was important to recognize that the concept of marriage had evolved.
But according to Dwivedi, the reforms that have taken place were made by the legislature and were meant to protect the interests of women and children.
“Hindu marriages are considered a Secrament, Secrament. The fact is that divorce has come, some changes have come.’
Senior advocate Kapil Sibal, appearing for Muslim outfit Jamiat-Ulema-e-Hind, argued that the legislation sought by the petitioners required public discussion, including debate in Parliament, discussions among families and society.
He also disagreed with the petitioners that the Parliament is not going to do anything in this regard. Any announcement by the court will block the debate in Parliament.He argued that this was a dangerous proposition.
“There will be no scope for debate in Parliament when you declare that it is a fundamental right and should be recognized,” Sibal said.
Earlier during the arguments, the bench had remarked that there were instances where the court had made pronouncements like the right to education and the right to a clean environment. The court remarked that the judgments making such declarations held that the legislature must enact a law to implement those declarations.
(Edited by Uttara Ramaswamy)