The jurisprudence of same-sex marriage

The Indian Constitution upholds the right to life and personal liberty under Article 21.

Published: 16th April 2023 01:29 AM  |   Last Updated: 16th April 2023 01:29 AM   |  A+A-

Image used for representational purpose only.

Denial of the right of marriage to same-sex couples would breach the Constitutional social contract and its underlying Due Process Clause. 

Recently, the Supreme Court Chief Justice referred petitions seeking legal recognition of same-sex marriages to a Constitution bench. The case is listed for final argument on April 18, 2023. A major question of law involved in the dispute over same-sex marriage is whether it will be brought within the Special Marriage Act of 1954. Same-sex unions are part of wider social change in which priority is given to individual choice and the acceptance of diversity. Same-sex marriages have some significant advantages vis-à-vis heterosexual marriages. Same-sex relationships involve a greater degree of choice than conventional heterosexual families, and commitment becomes increasingly a matter of negotiation rather than ascription. 

Jeremy Bentham, in his seminal treatise An Introduction to the Principles of Morals and Legislation (1781), stated that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand, the standard of right and wrong, on the other, the chain of causes and effects, are fastened to their throne.” Bentham argued that the purpose of law must be providing the maximum happiness to the maximum number in the community. 

He further elaborated: “The community is a fictitious body, composed of individual persons who are considered as constituting as its members. The interest of the community then is, what is it? – the sum of the interest of the several members who compose it. It is vain to talk about the interest of the community without understanding what the interest of the individual is...” 

Bentham held that the principle of utility is also described as the greatest happiness principle in that it asserts that the only morally right and proper goal of action is to achieve the greatest happiness for all individuals whose interest is affected by the action. The conundrum of same-sex marriage must be examined through the prism of the Benthamite principle of morality and law-making. 

Lockean Social contract theory is the basis of classical liberalism and constitutionalism. John Locke emphasised three fundamental natural rights, namely life, liberty, and property. These rights, he argued, are existed in the state of nature and beyond the long arm of any government. Protection of life, liberty, and property is the gist of constitutionalism, and governmental powers are defined and limited for this purpose by constitutional order. A constitution is a social contract forged between the citizenry and the State.

The Indian Constitution upholds the right to life and personal liberty under Article 21. This made the right to privacy as well as the decriminalisation of homosexuality possible. The Supreme Court in Francis Coralie v. Union Territory of Delhi(1981) underscored that the right to live includes the right to live with human dignity and all that goes along with it, including the right to express oneself in diverse forms and mixing and mingling with fellow human beings. Marriage is the highest form of expression, mixing and mingling with fellow human beings. Denial of the right to marriage, irrespective of one’s sexual orientation, is an affront to the citizen’s right to live with human dignity. 

The USA’s founding fathers replaced the Lockean right to property with the ‘pursuit of happiness’ in the American Declaration of Independence. In Obergefell v. Hodges (2015), the United States Supreme Court held that marriage is a pursuit of happiness and the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. “It is the due process which had made Article 21 a robust fundamental right and which has today enabled the triumph of individual freedom […] By the time the Indian Constitution came to life in 1950, the due process guarantee was absent from the Constitutional text. Nevertheless, from the ashes of unsavoury rejection by the Drafting Committee, Due Process against all odds found its way into the Indian Constitution.”- says Rohan J. Alva in his Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India (2022). 

John Rawls, the American political philosopher, argued that people had to choose their justice principles under a ‘veil of ignorance.’ It is an experiment under which individuals would know nothing about their particular societal positions. Under the ‘veil of ignorance,’ imaginary people would not know their age, sex, race, social class, religion, abilities, preferences, life goals, or anything else about themselves. Rawls argued that only under a ‘veil of ignorance’ could human beings reach a fair and impartial agreement (social contract) as true equals, not biased by their place in society. 

We must undergo a ‘Veil of Ignorance’ experiment and forget our sexual orientation and moral and religious biases to adjudge the LGBTQ+ community’s right to same-sex marriage. Denial of the marriage right to same-sex couples would breach the Constitutional social contract and its underlying Due Process Clause.

Faisal C K

 (Views are personal)


Disclaimer : We respect your thoughts and views! But we need to be judicious while moderating your comments. All the comments will be moderated by the editorial. Abstain from posting comments that are obscene, defamatory or inflammatory, and do not indulge in personal attacks. Try to avoid outside hyperlinks inside the comment. Help us delete comments that do not follow these guidelines.

The views expressed in comments published on are those of the comment writers alone. They do not represent the views or opinions of or its staff, nor do they represent the views or opinions of The New Indian Express Group, or any entity of, or affiliated with, The New Indian Express Group. reserves the right to take any or all comments down at any time.

  • libra

    Yawn! why is a western man espousing his societal norms here? oh wait ...
    5 months ago reply
flipboard facebook twitter whatsapp