• In his verdict on not legalising same-sex marriages, Chief Justice D.Y. Chandrachud observed that the Constitution does not expressly recognise a Fundamental Right to marry.

• An institution cannot be elevated to the realm of a Fundamental Right based on the content accorded to it by law, he said.

• Justice Chandrachud, however, said several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty.

• Entry 5 of the Concurrent List of the Seventh Schedule of the Constitution grants both the State legislature and Parliament the power to enact laws with respect to marriage. 

• In pursuance of the power conferred by Articles 245 and 246 read with Entry 5 of the Concurrent List, Parliament has enacted laws creating and regulating the socio-legal institution of marriage. The State legislatures have made amendments to such laws with the assent of the President, since the subject of marriage is in the Concurrent List.

• The petitioners sought that the Supreme Court recognise the right to marry as a Fundamental Right. This argument was rejected. They said that denial of their right to marry violates Articles 14, 15, 19, 21 and 25. Article 21 encompasses the right to happiness, which includes a fulfilling union with a person of one’s choice.

Why was this argument rejected?

• The SC bench said this would mean that even if Parliament and the State legislatures have not created an institution of marriage in exercise of their powers under Entry 5 of the Concurrent List, they would be obligated to create an institution because of the positive postulate encompassed in the right to marry. 

• Marriage may not have attained the social and legal significance it currently has if the State had not regulated it through law. Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation.

• The Constitution does not expressly recognise a Fundamental Right to marry. Yet, it cannot be denied that many of our constitutional values, including the right to life and personal liberty may comprehend the values which a marital relationship entails. They may at the very least entail respect for the choice of a person whether and when to enter upon marriage and the right to choose a marital partner, the SC bench said.

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