Reevaluating Marriage Rights: The Imperative of Inclusivity
Context:
The recent Supreme Court ruling in the case of Supriyo Chakraborty has brought a critical matter to the forefront of Indian jurisprudence. The judgment underscores a vital issue – the right to marry, especially for same-sex individuals.
Background:
- Regrettably, the Court ruled that there is no fundamental right to marry in India, and by extension, it prohibited same-sex marriages.
- The Court also unanimously mandated the protection of same-sex couples from harassment.
- It further issued directives to sensitize authorities and established a committee to address various related matters. However, a fundamental flaw in the Court’s decision, one that needs correction sooner rather than later arose.
- In 2009, the Delhi High Court made a landmark decision in the Naz Foundation case, effectively decriminalizing non-heterosexual relations by reading down Section 377 of the Indian Penal Code (IPC).
- Section 377 of the IPC had earlier criminalized such relationships, subjecting individuals to severe penalties, including imprisonment for up to ten years.
- The LGBTQI communities had long suffered due to the implications of this law, enduring blackmail, torture, violence, and harassment by the police, their families, and even their lovers. Individuals from the LGBTQI community were forced to hide their sexual orientation out of fear.
- Prior to the Navtej Johar case, the Court, in the NALSA judgment, recognized that individuals have the right to identify their own gender. They could be born as males but have the right to self-identify as females or transgender persons.
- Subsequently, Parliament passed the Transgender Persons (Protection of Rights) Act, providing a framework for changing one’s gender and safeguarding against discrimination in various establishments, whether private or state-owned.
Relevance:
GS-02 (Judiciary, Government policies and interventions, Gender)
Mains Question:
Examine the implications of the Supreme Court’s ruling in the Supriyo Chakraborty case on the right to marry, especially for same-sex couples, and evaluate the need for revisiting this decision in light of human rights and constitutional principles. (250 words, 15 marks)
Dimensions of the Article:
- Human Rights Declaration
- Expansive Interpretation
- Irony in the Ruling
Human Rights Declaration:
- India, as an original signatory to the Universal Declaration of Human Rights (UDHR), is bound to align its legislation with this foundational document.
- The Indian Constitution has been significantly influenced by the UDHR, and Indian courts have consistently interpreted the Constitution in light of international covenants and the UDHR.
- Article 16 of the UDHR explicitly affirms the right to marry for individuals without limitations based on race, nationality, or religion. Under the UDHR, the right to marry is unequivocally recognized as a fundamental human right.
- Consequently, it can be argued that this human right extends to a fundamental right within the Indian context, even if not explicitly mentioned in the Constitution.
Expansive Interpretation:
- The Supreme Court of India has interpreted Article 21 of the Constitution, which guarantees the right to life and personal liberty, to encompass the right to dignity.
- This interpretation has paved the way for recognizing positive rights such as the right to education, food, and a healthy environment.
- The UDHR provisions have been cited by the Supreme Court to elaborate rights enshrined in the Indian Constitution, emphasizing the interconnection between international human rights norms and domestic legal interpretations.
- Given this approach, the right to marry should logically be read into Articles 19 and 21, especially when the right to intimate relations is already recognized, as evidenced by the Supriyo Chakraborty judgment itself.
Irony in the Ruling:
- The Court does permit marriage between a transgender individual and a cisgender individual. This recognition is a positive development. However, the irony lies in the fact that, according to the judgment’s logic, marriage is deemed legal only between a biological man and a biological woman.
- Despite the Court’s commendable shift from biological sex to self-identified gender, as in accordance with the NALSA judgment, it is perplexing that a similar leap could not be made from biological sex to sexual orientation.
- Failure to recognize same-sex marriages not only discriminates against these couples but also perpetuates the notion that they are “unsuitable for marriage,” which now bears the stamp of approval from the highest court. This effectively relegates them to a second-class status in society.
Way Forward:
- Rectifying this anomaly is imperative, not only from a human rights perspective but also to foster a more inclusive and egalitarian society. The rights of LGBTQI individuals, including their right to marry, should not be compromised. The struggle for these rights is akin to a journey marked by setbacks and triumphs.
- The Supreme Court’s decision in Supriyo Chakraborty, denying the fundamental right to marry, especially for same-sex couples, is a departure from internationally accepted human rights norms and the principles enshrined in the Indian Constitution.
- India’s historical commitment to human rights, as reflected in its association with the UDHR, necessitates a reevaluation of this decision.
- The Court’s expansive interpretation of constitutional provisions in the past should logically extend to recognizing the right to marry as a fundamental right.
