wl-6186-Same-sex Marriage Advocacy: A Hypothetical Reimagination of India’s Constituent Assembly Debates

Marriage laws in India have been subjects of continuous debate. Unsurprisingly, the questions pertaining to marriage were also raised in the Constituent Assembly Debates (CAD). Within this historical context, arguments ranged from the broad-based formulation of a Uniform Civil Code to more specific proposals for the inclusion of the Right to Marry as a Fundamental Right. The debates on the Directive Principles of State Policy (DPSPs) also witnessed a proposal that envisaged securing marriage based on mutual consent of “both” the sexes, with equal rights for the “husband” and “wife”. Although this proposal never made it to the Final Draft, it was restricted to just the traditional gender binaries. Marriage, by definition, is dual-gendered under most Constitutions, and this advertently marginalizes the LGBTQI+ community by excluding them from its scope. The Supreme Court in Supriyo v. Union of India failed to recognise a Fundamental Right to Marry, and this only exacerbated the challenges for marriage equality in India. If such a Fundamental Right and DPSP had to be resuscitated from the debates for their inclusion into the Constitution as it stands today, the implications for interfaith and same-sex marriages would have notably been different. This paper delves into this possibility by tracing the historical and hypothetical impacts of enshrining the right to marry in the Constitution as a Fundamental Right (in Part III) and a Directive (under Part IV), and explores an approach that would help resolve contemporary challenges to same-sex marriages. It culminates in a compelling argument for the formalization of a right to legal marriage as a constitutional necessity, articulating its role as a linchpin to reconcile the often-antagonistic principles of intimate liberty and social equality.