India’s Apex Court Simply Cannot ‘Legalize’ Same-Sex Marriage – OpEd


The recent Indian Supreme Court judgement on same-sex marriage was welcome, demonstrated judicial restraint and cleared the air on ‘domain’. It was the best that could be possibly delivered in the given circumstances. 

That it is beyond the realm of the judiciary was a given and, despite overwhelming support for the Apex Court to adjudicate on an issue that was, arguably, within legislative domain, the Supreme Court maintained its position firmly. 

In an astute decision complete with observations sound, and as far-reaching as maintainable in the context, the Supreme Court has left it to the Legislature to legislate on the issue.

All five judges agreed there is no fundamental right to marry and in a majority verdict, the court has ruled against same-sex marriage and adoption. 

Legislature Must Decide Was Majority View 

The majority view was that the Legislature must decide on bringing in same-sex marriage law. Justice Hima Kohli says she agrees with the view of Justice Ravindra Bhat, as does Justice Narasimha. 

The CJI and Justice Kaul spoke in favour of introducing civil unions for non-heterosexual couples. 

On the Centre’s suggestion that this Court would be violating the doctrine of separation of powers if it determines the lis in this case, CJ DY Chandrachud clarified, “…the Constitution demands that this Court conduct judicial review and enforce the fundamental rights of the people. 

“The framers of our Constitution were no doubt conscious of this doctrine when they provided for the power of judicial review. Being aware of its existence and what it postulates, they chose to adopt Article 32 which vests this Court with broad powers. 

“The doctrine of separation of powers cannot, therefore, stand in the way of this Court issuing directions, orders, or writs for the enforcement of fundamental rights. The directions, orders, or writs issued for this purpose cannot encroach upon the domain of the legislature. This Court cannot make law, it can only interpret it and give effect to it.”

Marriage Within Domain Of Parliament, States

Also, “There is no universal conception of the institution of marriage, nor is it static. Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage.”

And, in his judgement, he clearly maintained, “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. 

“However, 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.”

And, concurrently, “This Court cannot either strike down the constitutional validity of Special Marriage Act or read words into the Special Marriage Act because of its institutional limitations. 

“This Court cannot read words into the provisions of the Special Marriage Act and provisions of other allied laws such as the Indian Succession Act and the Hindu Succession Act because that would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.”

Present In Pre-Colonial India

Despite the five-judge bench of the Supreme Court headed by Chief Justice of India DY Chandrachud, unanimously ruling against legalising same-sex marriage in India on 17 October 2023, the observations made by the minority made for pertinent consideration. 

In particular, the historical reference to ‘queerness’ prevalent in ancient India. 

“In pre-colonial times, the Indian subcontinent was home to a diverse population with its own, unique understanding of sexuality, companionship, morality and love. Stories, history, myths, and cultural practices in India indicate that what we now term ‘queerness’ was present in pre-colonial India. 

“It would not be a faithful description of the times to say that queerness was “accepted” by the populace. 

“Rather, society did not often view (many manifestations of) the queer identity as something that required acceptance to begin with because it formed a part of ordinary, day-to-day life, similar to heterosexual or cisgender identities.”

This was true for many parts of the country at many points of time, though perhaps not everywhere and at all times. This is not to suggest that society did not inflict any violence upon members of the LBGTQ community in pre-colonial times. 

“Rather, it is to highlight that current beliefs, attitudes, and practices which are hostile to the LGBTQ community are not necessarily natural successors of the past. The native way of life gradually changed with the entry of the British, who brought with them their own sense of morality. It was not their morality alone that they brought with them but also their laws.”

Media Misses Golden Opportunity

Yet, instead of taking this as an opportunity to correct the bias with regard to the community and pin the onus of the bias rightly on the British regime and its Victorian mindset, the media, particularly the foreign media and large sections of their Indian counterparts, instead chose to perceive the judgement that, in all soundness, refrained from indulging in ‘judicial legislation’ left it to the legislature, as CNN and Reuters put it “India’s top court declines to legalize same-sex marriage in landmark LGBTQ ruling” with predictable bias; as if it were within the top court’s jurisdiction to ‘legalise’ any act. 

As one national daily put it, “Five-judge SC bench refuses to grant legal recognition to same-sex marriages”, and another, “On same-sex marriage, Supreme Court did not do justice” and BBC’s “On same-sex marriage, Supreme Court did not do justice,” and so on and forth. Each media outlet ranted and raved, without any application of mind about the ‘injustice’ that the Supreme Court had done.

Right To Marry Not A Fundamental Right

On Freedoms, the Supreme Court correctly held that the Right to Marry was not a fundamental right in the context of the same-sex marriage petition, refrained from legislation and left the issue of legislating on same-sex marriage to the Parliament and the States. 

Also, the Freedom of Speech and Expression on the basis which the Media operates, judges, misleads and misinterprets facts as flagrantly as this, is conditional to reasonable restrictions.

The time to examine this hasn’t arisen as yet but must…and soon too, as self-censorship that the media is expected to undertake, fails as a rule, and also happens to be strictly by law…a conflict of interest.

Gajanan Khergamker

Gajanan Khergamker is an independent editor, legal counsel and documentary film-maker with over three decades of media-legal experience across India. He is the founder of DraftCraft – an India-based think-tank. Through strategic writings and columns across global media; niche workshops held for the benefit of police personnel, lawyers and media students as well as key lectures held at corporate venues and in Law and Mass Media colleges and universities across India, he analyses and initiates 'live' processes that help deliver social justice through the media and legal channels. He trains students, journalists, lawyers and corporate personnel to ideate, integrate and initiate the process of social justice which “isn't the sole responsibility of the State”. He holds legal aid workshops and creates permanent legal aid cells for the deprived across India through positive activism and intervention. He furthers the reach of social responsibility by initiating strategic process by offering consultancy services to corporates in the rapidly-growing CSR scenario. To further the reach of social responsibility, Gajanan Khergamker works closely with state entities, law universities, educational institutes, research think-tanks, publications and media houses, corporates and public-spirited individuals. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs and diversity.

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