SC resumes same-sex marriage hearing, says ‘Constitution itself is a tradition breaker so…,’

The Supreme Court, which resumed the hearing of petitions seeking legal recognition for same-sex marriages in India on Tuesday, cited that the Indian Constitution itself is a "tradition breaker". 

As the hearing starts, senior lawyer Rakesh Dwivedi questioned the apex court whether ‘there is a fundamental right for persons in same-sex relations to marry? Either flowing from Article 14, 15 or 21.’ He further pointed out that heterosexual people have the right to marry as per their personal law, custom, religion. That has been continuous - that is the foundation of their right. 

Dwivedi in his submission to the Supreme Court also suggested that the issue of same-sex marriage is best left to the parliament. 

The context of marriage has changed: Supreme Court

Responding to the comment, the Chief Justice of India DY Chandrachud said, “So you concede the fact that there is a right to marry under the constitution but that is confined to heterosexuals?”

Adding to that, Justice S Ravindra Bhat said, taking the argument forward- custom, culture, religion - rewind that 50 years ago- inter-caste marriages were not permitted. Go back further- sapinda marriage was not permitted. The context of marriage has changed.

Bhat further cited, Nothing is granted. We're free citizens. We have taken this to ourselves. The right to speak, to associate - these are part of our inherent rights. Constitution doesn't grant this. Even legislation has only recognised. So even the right to marry is inherent. 

“The moment you bring tradition, the constitution itself is a tradition breaker. Because the first time you brought in 14, you brought in 15, and 17, those traditions are broken.”

Marriage itself is entitled to constitutional protection: CJI DY Chandrachud

Meanwhile, CJI observed, To state at the extreme that there was no fundamental right to marry under the constitution would be far-fetched. What are the core elements of marriage? If you look at each element, each is protected by constitutional values.

“One, marriage itself postulates two individuals cohabit. Two, marriage accompanies with it the existence of the family. Three, marriage has procreation as a very important ingredient. Though, we must be cognizant that the validity of the marriage is not conditional on it. Four, marriage is exclusionary to all others. People in a marriage to exclude all others from the marriage. Five, social acceptance of existence of marriage. Social acceptance is not confined to that individual but how society looks at that institution.”

We must accept as a basic proposition that marriage itself is entitled to constitutional protection. It is not just a matter of statutory recognition, CJI observed