Constitution Of India Itself A 'Tradition Breaker': Supreme Court Remarks In Same Sex Marriage Petitions

The Supreme Court of India today, while hearing a batch of petitions seeking legal recognition for same sex marriages in India, observed that the Indian Constitution itself is a "tradition breaker".

The Constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha was hearing Senior Advocate Rakesh Dwivedi for the Respondents when, Justice Bhat observed, 

"The moment you bring tradition, the constitution itself is a tradition breaker. Because the first time you brought in 14, you brought in 15, and 17, those 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 said we don't want it. We went so far to hold untouchability as unconstitutional. I don't think any other constitution says that. Traditions are there to the extent they are there. But at the same time let us be alive to the fact that the concept of marriage has evolved."

The comments followed Dwivedi's submission that the issue of same-sex marriage is best left to the Parliament as even in the fields of reforms, such as dowry prohibition, Courts have held that it is for the legislature to decide.

He said the first question to be considered would be whether there is a fundamental right under the Constitution for persons in same sex relations to marry? Dwivedi submitted that Heterosexual couples have the right to marry as per their personal law, custom, religion.

It is here that Justice Ravindra Bhat pointed that even inter caste marriages were not permitted traditionally. However, with time, the context of marriage has changed. The Judge orally remarked,

"Nothing is granted. We're free citizens. We have taken this to ourselves. Right to speak, to associate - these are part of our inherent rights. Constitution doesn't grant. Even legislations have only recognised. So even the right to marry is inherent. If we say that it is inherent, it is a part of the constitution. You may locate it in 19 or 21."

Justice Bhat continued that within a marriage, it is upto the spouses to decide what constitutes their marriage. "What is marriage to each other? The content is decided voluntarily by each party. The spouses decide whether to have children- it's entirely their choice. There may be marriages where parties may not live together. There may be no matrimonial home. Marriages may not have any element of physical or sexual relations. So what is the content central to marriage is upon the spouses."

Dwivedi however insisted that if marriage is treated as an individual concept where spouses define what marriage is- there will be no law.

During the hearing, the CJI also observed that the core elements of marriage are protected by constitutional values.

"One, marriage itself postulates two individuals to cohabit. Two, marriage accompanies with it the existence of family. Three, marriage has procreation as a very important ingredient. Though, we must be cognizant that the validity of marriage is not conditional on it. Four, marriage is exclusionary to all others. People in a marriage to exclude all others from the marriage. Five, social acceptance of existence of marriage. Social acceptance is not confined to that individual but how society looks at that institution."

Having said that, the CJI remarked, it cannot be denied that state has a legitimate interest in regulating marriage. So the next issue, he said, is whether heterosexuality is a core element of marriage?