No Indian Has the Right to Marry

Why in News?

• The Supreme Court recently issued its much-anticipated decision rejecting requests to legalise same-sex unions and went into greater detail about the Special Marriage Act of 1954's provisions.
• All five judges have chosen to leave it to the legislature to enact such a law. Court’s refusal to grant legal recognition to marriages between persons of the same sex is a huge legal setback to the queer community in the country.

The Petition Before the Supreme Court Regarding Same Sex Marriage

• The petitioners had requested the Court to reimagine the contours of the Special Marriage Act (SMA) 1954 to embrace same-sex unions.
• The petitioners had requested to declare SMA unconstitutional on the ground that it downgrades the diverse LGBTQIA+ community to the margins.

Special Marriage Act1954 and its Salient Features

• The SMA 1954
  • The Act governs a civil marriage where the state sanctions the marriage rather than the religion.
  • Issues of personal law such as marriage, divorce, adoption are governed by religious laws that are codified.
  • These laws, such as the Muslim Marriage Act, 1954, and the Hindu Marriage Act, 1955, require either spouse to convert to the religion of the other before marriage.
  • In the Indian system, both civil and religious marriages are recognised. However, the SMA enables marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion.
• Key Features of SMA 1954
  • The applicability of the Act extends to the people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists, across India.
  • The minimum age to get married under the SMA is 21 years for males and 18 years for females.
  • However, once married as per the secular law, under Section 19 of the Act, any member of an undivided family who professes the Hindu, Buddhist, Sikh, or Jain religion shall be deemed to affect their severance from the family.
  • This would affect rights, including the right to inheritance, of the persons choosing to marry under the SMA.

The Verdict and Observations Made by the SC

• Out of Court’s Jurisdiction
  • The Court firmly expressed its reluctance to engage with any innovative and creative interpretative exercise.
  • Also, the court cited the limits of its jurisdiction and emphasised the exclusive legislative authority over such matters.
  • The top court said it is for Parliament & state legislature to formulate laws on it.
• Refused to Declare SMA, 1954 Unconstitutional
  • The Court emphasised the SMA is inherently secular and progressive nature and rejected to declare it unconstitutional.
  • The court underscored the potential regression that might transpire if such a measure were adopted.
  • CJI D.Y. Chandrachud and Justice Sanjay Kishan Kaul ruled that queer couples have a right to seek recognition for their union, but declined to read down the provisions of the SMA to that effect.
  • On the other hand, Justices S. Ravindra Bhat, Hima Kohli and P.S. Narasimha rejected the position holding that any such recognition can only be based on statute. 
• Marriage is Not a Fundamental Right Under the Constitution: Despite dissenting opinions articulated by the CJI and Justice Sanjay Kishan Kaul, the bench was unequivocal in asserting that there is no fundamental right to marriage under the Indian Constitution.

Criticisms of the SC Verdict on Same Sex Marriage

• Majoritarian Morality Influenced the Judgement
  • The decision appears to have been influenced by the majoritarian morality rather than often repeated “constitutional morality.”
  • The judgment would certainly become a classic case of judicial restraint and any government would justifiably celebrate.
• Restricts the Scope of Puttaswamy Judgement (2017)
  • The Court has even restricted the scope of the nine-judge bench in Puttaswamy (2017) by holding that it merely upheld the right to privacy but not to marry.
  • The privacy judgment upheld decisional privacy or privacy of choice, which should ideally include the choice of entering a matrimonial relationship.
• Contrary Views by the CJI
  • The CJI declined to interpret the SMA to include same-sex couples within its ambit. However, this position seems problematic given the interpretation in Article 15(1) of the term sex to include sexual interpretation.
  • The CJI quoted Shafin Jahan (2018) case but reached a contrary conclusion.
    • In Shafin Jahan case, the Court accepted that our choices are respected because they are ours.
    • Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.
• The Reluctance of the Bench to Interpret SMA, 1954
  • The weakest aspect of the verdict which was consistent in both the minority and majority opinions was the reluctance to engage in an interpretative analysis of SMA due to apprehensions about encroaching on legislative prerogative.
  • However, such interpretation has not been an unfamiliar terrain for the constitutional courts.
  • Previous cases have witnessed the judiciary instilling diverse terms with distinct meanings, thereby extending the reach of statutes, and amplifying the expanse of rights safeguarded under the Constitution.
    • For instance, in NALSA (2014), the word sex was interpreted to give it a wider meaning: The expression ‘sex’ used in Articles 15 and 16 is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male or female”.
    • Moreover, various rights, including the right to self-determination of gender, right to information, rights to privacy, etc which are considered inherent to Article 21, were not explicitly mentioned in the text of Constitution.
    • The judiciary’s liberal interpretation of the right to life and liberty led to the recognition of these valuable rights.

Conclusion

• In concluding that there is no fundamental right to marry, the Court has negated the expectation that it would not allow discrimination against same-sex couples in the marital domain to continue.
• The LGBTQIA+ community may now have to take hope from the Court’s direction that the government should form a committee to decide the rights and entitlements of queer couples.

Q1) What is Section 377 of Navtej Singh Johar v Union of India?

The five Judge Bench unanimously held Section 377 to be unconstitutional and read down Section 377 to the extent it criminalised consensual sexual conduct between adults, whether of the same sex or otherwise, in private.

Q2) What is the right to privacy?

According to article 21 of the Indian constitution, every person – citizens and non-citizens have the right to live and the right to have personal liberty. The state can't deprive any person of these two rights except under procedure as prescribed by the Indian Penal Code.

Source: The Indian Express