Right to same-sex marriage is Fundamental Right

The CPI(ML) welcomes the decision of the Supreme Court to place the matter of same-sex marriage before a 5-judge Bench and call for an early decision on the same. This is another step in the quest for equality by members of the LGBTQIA+ communities, given that the right to marriage and to free choice of partner is a fundamental right of individuals. We believe that this right and freedom of choice, in pursuit of happiness, is a cornerstone of autonomy and dignity.

We hope and expect that the Supreme Court will perform its duty and protect same-sex marriages in the way it did when it decriminalised same-sex relationships. Indeed the Supreme Court had held then that the constitutional principles which have led to decriminalization require continuing engagement with questions of rights, to ensure that people in same-sex relationships can have the opportunity to find true fulfilment in every facet of life. The law cannot discriminate against same-sex relationships and it is the duty of the state to take positive steps to achieve equal protection for LGBTQIA+ communities.

Unsurprisingly, the Union Government has adopted a contemptuous stance in its affidavit filed in the case, stating its total opposition to same-sex marriages on the basis of the constitutionally vague concept of ‘cultural ethos’ and arguing that they are not comparable with the 'Indian family unit' concept which is envisaged only between a biological man and a biological woman. This echoes the position of the RSS that marriage is supposed to be between two opposite genders, and is neither a contract nor a recognition of the right to love.

The Supreme Court must reject this opposition from the government which is rooted in the patriarchal and homophobic ideology of Brahmanical Hindu supremacism, and deliver a judgment rooted in the Constitutional principles of equality, dignity and privacy and thereby ensure that the promises made in the Constitution are inclusive of LGBTQIA+ communities.