23rd October 2023 (9 Topics)
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The Court’s ‘no fundamental right to marry’ is wrong
Context:
The Supreme Court of India’s view with respect to same sex persons, that there is no fundamental right to marry, is incorrect.
The Court's Ruling on Marriage Rights
- Fundamental Right to Marry: Recent Supreme Court ruling denies fundamental right, particularly impacting same-sex individuals, provoking critique for potential infringement.
- Protection from Harassment: Despite limitations, Court mandates protection for same-sex couples, issues guidelines, forming a committee for resolution. Reflects nuanced approach towards LGBTQI rights.
- Need for Correction: Court's safeguarding measures commendable, yet denying marriage right requires rectification. Disregards India's commitment to Universal Declaration of Human Rights.
Marriage Rights
- Section 377 and Struggles: Landmark cases from Naz Foundation to Navtej Singh Johar illustrate LGBTQI rights progression, highlighting ongoing challenges.
- Transgender Rights and NALSA: Pre-Navtej Johar, NALSA acknowledged self-identification of gender, leading to Transgender Persons Act, addressing recognition and protection.
- Marriage's Significance: Beyond legalities, marriage bestows inheritance, decision-making authority, and societal legitimacy. Denying this reinforces stigmatization and inequality for same-sex couples.
Unintended Consequences
- Transgender Marriages and Contradictions: Recognition underscores nuanced gender identity understanding, but contradicts limiting marriage rights based on biological sexes.
- Impact on LGBTQI Communities: Denial not only discriminates but reinforces the notion of unfitness for marriage, perpetuating second-class status, affecting societal standing.
- Role of International Jurisprudence: Incorporating U.S. jurisprudence in Supriyo Chakraborty, yet dismissing foreign legal principles in marriage matters requires reassessment.
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