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The Court’s ‘no fundamental right to marry’ is wrong

  • Published
    23rd Oct, 2023


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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