The Supreme Court’s Denial of Same Sex Marriage In India as Fundamental Rights

Context: 

• Recently, the Supreme Court of India denied the Same Sex Marriage In India as Fundamental Rights.

Legal and Moral Arguments Supporting Same-Sex Marriage in India

• Universal Declaration of Human Rights (UDHR), 1948: India was an original signatory to the UDHR, the founding document of all human rights in the world, whose Article 16 provides that, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”.
  • Earlier used by the Apex Court: The Supreme Court has used the provisions of UDHR to elaborate rights under the Constitution. 
    • Examples: Concept of dignity, right to protection against torture or cruel, inhuman or degrading treatment, right to privacy, right to autonomy, principles of natural justice into the administrative process to state, etc.
• Rights to Transgenders: The Court holds that marriage between a trans-man and a cis-woman or between a transwoman and a cisman is legal. 
  • If  transgenders have the right to marriage, then it should be applicable to Same Sex marriages.
• Against Humanity: Not recognising marriage for same sex couples is not only discriminatory against them but also against humanity, which believes in equality of all. Not providing them rights reduces them to second class citizens.

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News Source: The Hindu

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