23-Oct-2023-Editorial

THE COURT’S ‘NO FUNDAMENTAL RIGHT TO MARRY’ IS WRONG

The Supreme Court of India’s stance asserting the absence of a fundamental right to marry for same-sex individuals, as demonstrated in the case of Supriyo Chakraborty, has raised significant concerns. While the Court rightly emphasized the need to safeguard same-sex couples from harassment and initiated various measures, the core decision regarding the right to marry is fundamentally flawed.

Same Sex marriage in India

Marriage between individuals of the same sex lacks legal recognition in India despite the milestone development in LGBTQ+ rights.

The Supreme Court of India nullified Section 377 of the Indian Penal Code in 2018, decriminalizing homosexuality and marking a pivotal moment in the country’s LGBTQ+ rights landscape.

Nevertheless, there remains an absence of legislation enabling same-sex couples to lawfully wed or obtain official acknowledgment of their relationships.

The Context of Supriyo Chakraborty:

In 2009, the Delhi High Court decriminalized consensual non-heterosexual relationships by reading down Section 377 of the Indian Penal Code in the landmark Naz Foundation case.

However, this progressive decision was overturned by the Supreme Court in the 2013 Suresh Kumar Koushal case.

Fortunately, in 2018, the Supreme Court upheld the decriminalization in the Navtej Singh Johar case.

Section 377 criminalized same-sex relationships, leading to discrimination, violence, and harassment faced by LGBTQI communities.

The Human Rights Declaration:

India, as an original signatory to the Universal Declaration of Human Rights (UDHR), is obligated to ensure that its laws align with the UDHR’s principles.

Article 16 of the UDHR recognizes the universal right to marry without limitations based on race, nationality, or religion.

While the Indian Constitution may not explicitly mention the right to marry, the Indian judiciary has consistently interpreted constitutional provisions expansively to protect fundamental rights.

Supreme Court’s Historical References:

The Supreme Court has often incorporated the UDHR’s principles into Indian jurisprudence. For instance, Article 21, which safeguards the right to life and personal liberty, has been expanded to include the right to dignity.

The Court has drawn on international principles to establish rights and safeguards in various cases.

In the context of same-sex marriage, the Court has introduced the concept of “intimate association,” influenced by U.S. jurisprudence.

Irony in the Ruling:

Interestingly, the same Supreme Court ruling recognizes the legality of marriage between a trans-man and a cis-woman or between a transwoman and a cis-man.

However, the judgment maintains that marriage is only legal between biological men and women, implying a disconnect between biological sex and gender.

Impact on Society:

The ruling not only discriminates against same-sex couples but also perpetuates societal notions that they are “not fit for marriage.”

This judgment relegates LGBTQI individuals to second-class citizens, and it is imperative to rectify this injustice.

Conclusion:

The Supreme Court’s decision on the absence of a fundamental right to marry for same-sex individuals is a critical flaw in India’s legal landscape. While the Court’s efforts to protect same-sex couples from harassment are commendable, rectifying this fundamental error is essential. It is essential to fight for and win the rights of LGBTQI communities, ensuring their rightful place as equal citizens in society.