Same-sex marriage: Indian Constitution a ‘tradition breaker’, says SC

Is marrying a fundamental right? That was the Madhya Pradesh government's question. The Supreme Court's counter-question: Is heterosexuality the core of a marriage?

A pair of hands wearing the chooda, red bangles symbolic of a (recently) wedded woman, with a Pride flag tucked into one wrist; the other hand is held by another person (photo: Getty Images)
A pair of hands wearing the chooda, red bangles symbolic of a (recently) wedded woman, with a Pride flag tucked into one wrist; the other hand is held by another person (photo: Getty Images)

Ashlin Mathew

On Day 8 of the Supreme Court hearing on the legal recognition of same-sex marriage, the Madhya Pradesh government questioned if there was indeed a fundamental right under the Constitution for persons to marry.

Faced with this question, the Supreme Court queried if only heterosexuality was the core element of marriage and pointed out that the Indian Constitution has long been a ‘tradition breaker’.

Appearing for Madhya Pradesh, senior advocate Rakesh Dwivedi said that the first question that needed to be answered was whether there was a fundamental right for persons in same-sex relations to marry, as a result of articles 14 (equality before law), 15 (no discrimination on any grounds) or 21 (protection of life and personal liberty).

When Chief Justice of India D.Y. Chandrachud countered him by asking whether he was in fact stating in his arguments that there was no fundamental right to marry, Dwivedi said that wasn’t what he meant. “Heterosexual people have the right to marry as per their personal law, custom and religion. That has been continuous—that is the foundation of their right,” said Dwivedi, attempting to explain his position.

The Supreme Court bench—comprising D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha—has been hearing a batch of 20 petitions arguing for the Constitutional recognition of same-sex marriage. The Centre has opposed it on the grounds that it is an urban elitist concept and only the Parliament should make laws.

Petitioners have challenged these provisions as violative of the fundamental rights to privacy and argued that the notice exposed couples who enter into non-traditional marriages to threats and violence from families and vigilante groups. The union government is, however, against granting same-sex couples the legal recognition of their relationships as 'marriage'.

Justice Kohli wanted to know from Dwivedi whether his argument was that customs that allow heterosexual couples to marry are based on Constitutional rights. Justice Bhat pointed out that as all human beings were free people, the right to marry is inherent and can be located in Article 19 (freedom of speech and expression) or 21.

“The moment you bring tradition, the Constitution itself is a tradition breaker. Because the first time you brought in [Article] 14, you brought in [Article] 15, and [Article] 17, those traditions are broken. If those traditions are broken, what is held hallowed in our society in terms of caste? We made a conscious break and said we don't want it. We went so [as] far to hold untouchability as unConstitutional,” said Justice Bhat.

He underscored that these so-called traditions can continue only up to a certain extent and the court has to be alive to the fact that the concept of marriage has evolved.

However, Dwivedi said, “The Constitution only gives a fundamental right to form relations, association, under Article 19(1)(c). What we call 'marriage' is an association which resulted in a social institution.”

Dwivedi insisted that the definition of 'spouse' under Section 5 of the Special Marriage Act should be seen. Section 5 defines the conditions for marriage under the Act and specifies that the bride should 18 at the time of marriage and bridegroom should be 21.

Changing his argument, Dwivedi maintained that all the reforms are made by the legislature, for the interest of women and children, and they did not alter the core aspect of the social institution of marriage.

When he again attempted to change his submissions to bring in incestuous relationships (between brothers and sisters), Justice Chandrachud foiled it by stating that it didn’t pose a Constitutional problem to the Supreme Court because there the interest of the state in such matters was understood.

Dwivedi claimed that though 'family life' would change in each case, 'marriage' would not: “Marriage is to bring about a unity of man and woman for a social purpose because society needs to perpetuate itself." He took solace in India’s growing population to stress his point.

“The generality is that our population has grown from 44 crores to 1.4 billion is not because some people did not want to procreate. We reached here because, in general, people want to come together, cohabitate, engage in sex... not for pleasure but for building a family of [their] own,” elaborated Dwivedi. Quoting the Bible, Dwivedi said, 'Go be fruitful and multiply.' He insisted that the “fundamental truth and cosmic unity” was the coming together of an egg and a sperm.

When he maintained that marriage was a sacrament, CJI Chandrachud pointed out that when Dwivedi underscored that marriage was not a matter of mere contract, but that there was an element of sacrament, it fell under the law.

“We said that the right to life does not owe its existence to the Constitution. It's a recognition by the Constitution. Once you say that marriage is a sacrament, you have to accept that marriage as a sacrament traces its origin to Article 25,” said CJI Chandrachud.

Dwivedi then attempted to change the direction of his submissions to the fact that the parliament would frame the laws. To which Justice Narasimha responded that the order of the court was in the context of recognising the existence of a right. “It's thereafter for the legislature. The court may not be able to take actions to implement it,” he underscored.

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