The Supreme Court on May 9 said the Constitution has itself been a “tradition-breaker”, and though tradition may have created the idea of heterosexual marriage, it has not been able to stop society from evolving and bringing changes to the very concept of marriage.
The Constitution has broken the once “hallowed traditions” of caste and religious discrimination. It has outlawed untouchability, a five-judge Bench led by Chief Justice of India D.Y. Chandrachud said.
The court is hearing petitions seeking a judicial declaration of the right to same sex marriage.
“To the extent traditions created the institution of marriage, they are there. But we have to also be alive to the fact that the concept of marriage has evolved,” Justice S. Ravindra Bhat observed.
The observations came in response to a submission by senior advocate Rakesh Dwivedi that same sex couples cannot overnight demand the opening of doors into the “social institution of marriage”.
They do not have a “fundamental right to marry” under the Constitution.
At this, Chief Justice Chandrachud asked Mr. Dwivedi whether anyone, leave alone same sex couples, had an absolute fundamental right to marry under the Constitution.
“Does anyone have a right to marry? Does the right to life under Article 21 have this concomitant of the right to marry? You say there is a right to marry under the Constitution, but that right is confined only to heterosexuals,” Chief Justice Chandrachud quizzed.
Justice Bhat pointed out that 50 years ago it was a bane to even think of an inter-faith marriage or an inter-caste one.
“The content of marriage has changed,” Justice Bhat said.
Justice Hima Kohli asked whether Mr. Dwivedi thought the right to marry was dependent on the Articles of the Constitution.
The court said the Constitution did not “grant” people any rights. Fundamental rights like life, liberty, dignity, freedom of expression and choice, personal autonomy, etc, were inherent in every person. “The Constitution only recognised them,” Justice Bhat said.
“To say there is no fundamental right to marry would be far-fetched,” Chief Justice Chandrachud observed.