One of the primary arguments that the court and the parties are considering is whether the right to marry is a fundamental right. Various aspects of this right such as the right to cohabit, the right to intimate association, and the right to give recognition to all incidental forms of cohabitation have been debated so far. Today, on the issue of whether the right to marry can be placed under the Constitution, the court remarked that the core constituent elements of marriage are protected by constitutional values, and the right to marry is inclusive of the right to cohabit.
A recap: Fundamental right to cohabit and the way forward
In the last hearing on May 3, the Solicitor General of India Tushar Mehta had informed the court that the Union government is taking “positive” steps and is planning to constitute a committee to take administrative measures for addressing issues faced by non-heterosexual couples in their daily lives, such as the inability to open a joint bank account or access joint insurance, among other things.
To this suggestion, Dr Abhishek Manu Singhvi, representing one of the petitioners, had told the court that the petitioners were willing to submit their suggestions. However, the court would anyway have to determine whether the right to marry is a fundamental right, he had pointed out.
While Dr Singhvi had termed this issue as identifying the real, symbolic and actual meaning of marriage, the CJI had termed it as one concerning the “conceptual domain” and had added a caveat that even this would require some legislative changes. Thus, the court would have to determine how far it could go into formulating a conceptual doctrine, it had been noted.
On this aspect, the court is now moving forward in the direction of determining whether the right to cohabit is a fundamental right. In fact, during the hearing on April 27, Mehta had argued that even though the right to love and cohabit based on one’s sexual orientation is a fundamental right, there is no fundamental right to seek legal recognition of that relationship as a marriage.
To this, the CJI had replied that once the State recognises the fundamental right to cohabit, there is a corresponding duty on the State to recognise all incidental forms of social cohabitation under the law.
The arguments on this aspect primarily began when the Bench recognised that by decriminalising the offence of consensual sex between same-sex adults in Navtej Singh Johar versus Union of India (2018), the Supreme Court had necessitated that non-heterosexual couples be in stable “marriage-like” relationships.
Fundamental right to marry: Can it be placed under the right to life?
Today, Senior advocate Rakesh Dwivedi, appearing for the State of Madhya Pradesh, which is an intervenor in the matter, continued his arguments from the previous hearing last week. He argued that non-heterosexual couples do not have a right to marry and that they cannot claim equality at par with homosexual couples.
Today, when he reiterated his arguments, the CJI asked, “Forget the issue about same-sex marriage. Does anyone have a fundamental right to marry?”
The CJI told Dwivedi that according to his argument, it seems like no one has a fundamental right to marry.
Justice Bhat narrowed the court’s query to whether the right to marry is a connected with Article 21 of the Constitution as many rights such as the rights to personhood, to be left alone, to privacy and to dignity have been carved out of the right to life.
To this, Dwivedi answered that there is a right to marry as per customs, religion and personal laws, but the right is only available to heterosexual couples.
Justice Bhat replied that 50 years ago, inter-caste and sapinda marriages were not permitted. So, with time, the content of marriage has also changed.
Justice Kohli asked if the right to marry could be placed and founded under the Constitution, keeping aside the legislative framework.
To this, Dwivedi submitted that the Constitution only recognises the right to association under Article 19(1)(c). However, over the years, this association has been recognised as a social institution through the evolution of the society.
Justice Bhat replied that nothing is “granted” under the Constitution. He added, “We are free citizens. We have taken this onto ourselves. So, the right to speak and the right to associate is a part of our inherent rights… So, if we say the right to marry is an inherent right, we can locate it under Articles 19 or 21. Perhaps, [we may locate] appropriately under [Article] 21…”
The Constitution is a “tradition breaker”: Supreme Court
Justice Bhat then said that the problem with the right to marry as an inherent right starts when the right is qualified by “in the sense” of something, such as traditions or customs.
In this context, he remarked the Constitution is a “tradition breaker”. He explained that the Constitution becomes a traditional breaker when Articles 14 (equality before law), 15 (prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth) and, most importantly, Article 17 (abolition of untouchability) are applied.
He remarked, “What is held hallowed in our society in terms of caste, we made a conscious break and said we do not want it. We went on to … outlawing untouchability in the Constitution.”
Justice Bhat added that traditions should be considered, but that does not mean that we must be oblivious to the evolutionary concept of marriage.
Dwivedi replied that though many evolutions have taken place, it does not disturb the core sacrosanct institute of marriage that is limited to heterosexual couples.
The CJI also remarked, “To state the extreme that there is no fundamental right to marry under the Constitution is far-fetched.”
Core elements of marriage protected by constitutional values
The CJI further stated that the core elements of marriage are protected by constitutional values. He said that the right to marry is inclusive of the right to cohabit, and marriage accompanies with it the existence of a family. Marriage has procreation as its important ingredient. However, the social acceptability of marriage is not conditional on procreation for the reason that people may not want to have a child, or marry at the age when they cannot have a child, or for the reason that they cannot have children, he added.
He further stated that another important element of marriage is that it allows two people who marry each other to exclude everyone else from that area of marriage.
Lastly, the social acceptance of marriage is also important, and the same is inclusive of the fact that the State has a legitimate aim in regulating marriage. But all these arguments came down to the basic proposition that marriage is entitled to constitutional protection and is not just a matter of statutory protection.
Heterosexuality: a core element of marriage?
The CJI said that the basic threshold of marriage has to be laid down to further consider the main argument of whether heterosexuality could be accommodated within the core elements of marriage. He added that here, the State has a legitimate interest and as per the arguments of the respondent, the State does not want to go beyond to recognise non-heterosexual marriages.
Justice Bhat put this issue a little differently from what the CJI said. He stated that the content of marriage is to be defined voluntarily by the parties. It is the parties to the marriage that will ultimately decide if they want to have a child despite social pressures. The concept of cohabitation is also to be chosen by the parties, as in, whether they want to live together, when they want to meet, and how many times they want to meet. Here, there may not be a matrimonial home in the traditional sense.
He said, “Marriage may not have any element or have varying degrees of physical or sexual relationship. Therefore, what is the content, context or cultural [considerations is] central to marriage will ultimately depend on the participating spouses (sic).”
Dwivedi did not agree with the statement. If the determining elements are dependent on the parties, marriage will become a fluid concept, he countered. He added that if such were to be the case, even the prohibited degrees of marriage would have to be done away with. However, Justice Bhat added that there, the legitimate interest of the State exists as also the larger interest of the public in terms of maintaining public order.
Dwivedi continued his argument and said that Hindu marriages are considered not as a mere contract but as a sacrosanct institution. To this, the CJI added that there is a constitutional precept to consider marriage as a sacrosanct institution. He added that this was the basis on which the Supreme Court overruled its judgement of Additional District Magistrate versus Shivkant Shukla (1976) in Justice K.S. Puttaswamy & Anr versus Union of India & Ors (2017). The latter judgment held that if Article 21 of the Constitution is suspended during a national emergency, one’s right to exercise the right to life is not suspended because the right does not owe its existence to the Constitution. Article 21 merely recognises the right to life, it was held in Justice K.S. Puttaswamy.
Following that argument, if it were to be further argued that marriage is sacrosanct, the same would have to be trace its origins from Article 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution.
After Dwivedi, Senior advocate Kabil Sibal, representing another intervenor in the matter, the Jamiat Ulama-I-Hind, a leading organisation of Islamic scholars belonging to the Deobandi school of thought in India, began his arguments.
Sibal: Relationship of heterosexual couples is still a union but not marriage
He added that marriage is an inalienable right to form a union. So, it does not matter if heterosexual or homosexual couples claim to be married. However, it is the issue of non-heterosexual couples asking for legislative recognition that is before the court. For this, he argued, the court would have to give a declaration on the recognition of sexuality.
Justice Bhat, playing the role of devil’s advocate, replied, “What if the Parliament brings out [its own] DOMA? (Defense of Marriage Act of the United States, which prohibited states to recognise non-heterosexual marriages.)”
Senior advocate Arvind Datar appeared for educationist and spiritual leader Dr Sukama Acharya, another intervenor in the matter, and argued that the validity of the Special Marriage Act, which was enacted in 1954, cannot be challenged on the grounds that it does not permit recognition of non-heterosexual marriages. The validity of the legislation has to be tested from its stated object, which at that time was only the recognition of inter-caste marriages.
Datar also briefly referred to the Supreme Court’s judgment in Vishaka versus State of Rajasthan (1997) to illustrate that the Union government, in this judgment, accepted the guidelines laid down by the court on the prohibition of sexual harassment at the workplace. That, he said, distinguishing that case from the instant one, is an example of collaborative governance where the judiciary filled the vacuum and the legislature accepted it.