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Right to marry is not absolute: Centre

  • Published
    27th Apr, 2023

The Centre reiterated its “humble request” to the Supreme Court not to rewrite the Special Marriage Act (SMA) for legal validation of same-sex marriages, claiming the LGBTQ++ community was an unidentified class of persons and legalising a marital relationship between members of this group could potentially create hurdles in the implementation of other statutes.

Arguments made by the Centre

  • The subject of extending legal recognition to same-sex marriages should “better be left to the choice of the Parliament”.
  • Marriage was not an absolute right, even between heterosexual couples.
  • The right to marry does not include the right to compel the State to create a new definition of marriage.

What are absolute rights?

  • Absolute rights cannot be limited for any reason. No circumstance justifies a qualification or limitation of absolute rights. Absolute rights cannot be suspended or restricted, even during a declared state of emergency.

Recognised absolute rights

  • International human rights law recognises that few rights are absolute and reasonable limits may be placed on most rights and freedoms.
    • Freedom from torture and other cruel, inhuman or degrading treatment or punishment
    • Freedom from slavery and Servitude
    • Freedom from imprisonment for inability to fulfil a contractual obligation
    • Prohibition against the retrospective operation of criminal laws
    • Right to recognition before the law
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