Marriages entitled to constitutional protection, not just statutory recognition: Supreme Court in same-sex marriage case [Day 8]

In the case seeking legalisation of same-sex marriages, the Supreme Court on Tuesday opined that marriage is a constitutional right and not merely a statutory right [Supriyo and anr v. Union of India]..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha said that taking into account the core elements of marriage and the protections that married couples are entitled to, marriages are entitled to Constitutional protection."To say the right to marry is not a constitutional right would be far fetched. Look at the core elements of marriage: right to cohabit for two individuals, marriage takes on board existence of family unit something which owes its existence constitutional values, procreation is an important aspect of marriage though validity or legality is not conditional on procreation ... State has a legitimate interest in regulating the marriage. So we must accept that marriage is entitled to constitutional protection and not just statutory recognition," the CJI said. What the Court has to consider is whether heterosexuality is core element of marriage, he added."Now we have to see if heterosexuality is core element of marriage."The bench also said that Constitution is a tradition breaker in many respects and cited the examples of casteism and untouchability. The bench was hearing arguments of Senior Advocate Rakesh Dwivedi, who was arguing against a fundamental right to marry for same-sex couples.Justice Bhat during the course of such submissions remarked, "For any citizen of this country, our individual is placed at highest level ... Constitution only recognises, nothing is granted. We are free people and we have taken it upon ourselves. So the right to marry is inherent and you can locate it in Article 19 or 21. The Constitution is tradition breaker. If you bring Article 14, 19, 17 and 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 we went to the extent of outlawing untouchability and thus traditions are there and to the extend they are there. But, at the same time let us be alive to the fact that concept of marriage has evolved.".Yesterday was the eighth day of arguments in the batch of pleas seeking legal recognition of same-sex marriage.The counsel for the respondents continued their submissions in the matter yesterday..Dwivedi began by contending that the issue belongs to the legislative domain, and the top court could not give any 'amorphous or vague' declaration recognising same-sex unions."If marriage is treated as a fluid concept, then no law is needed and then brothers and sisters would also want to marry. Marriage cannot be made so fluid and undefined, it is to bring about unity of man and woman for a social purpose, for the race to perpetuate," he submitted. Justice Narasimha then pointed out that the Court could recognise it and leave it up to the legislature to take it ahead. "Did we not do with privacy? We recognised the right to privacy, but did not touch the law part and we left data privacy bill etc to the parliament," the CJI reminded..Senior Advocate Kapil Sibal, appearing for the Jamiat Ulama I Hind, said that the matter needs to be part of public discourse accompanied by discussions in the parliament."Heterosexual marriage has stood the test of time because it has been accepted by all three levels (individual, family and society). You do not need a Constitution for it frankly, my lords. If you want to equate it, you need all the elements which go into heterosexual unions being recognised," he said.He stressed that same-sex and heterosexual unions are different classes, and parliament cannot be directed by courts to make a law or discuss about recognition for the former.Sibal argued that the reliance on foreign judgments by the petitioners was misplaced, as those were in different contexts and in scenarios different from that in India. .Senior Advocate Arvind Datar said that the Special Marriage Act has to be tested with the stated objective by which parliament enacted it."Once you recognise the rights the other statutes have to follow it and make the necessary changes then ... making the declaration is constitutional border of judiciary and developing it further is in legislative domain. If we get into Hindu marriage Act etc, it will be nothing but judicial retrofitting.".[Watch the entire hearing here].[Follow live-coverage of hearing].Follow our detailed coverage of Day 1 of the hearing here and here.Follow our detailed coverage of Day 2 of the hearing here and here.Follow our detailed coverage of Day 3 of the hearing here and here.Follow our detailed coverage of Day 4 of the hearing here and here.Follow our detailed coverage of Day 5 of the hearing here and here.Follow our detailed coverage of Day 6 of the hearing here and here.Follow our detailed coverage of Day 7 of the hearing here and here.Read about the 20 petitions seeking legalisation of same-sex marriage here.