The Indian Supreme Court by its verdict delivered on 17.10.2023 in Supriyo vs Union of India has rejected the petitions claiming recognition of same-sex marriages.
A Californian Perspective
In connection with the recent Indian Supreme Court ruling, I recall an incident during my visit to California. I was invited by two Judges of the Federal Appellate Court, one of whom, Judge John Breyer, was the younger brother of US Supreme Court Justice Stephen Breyer. Justice Breyer recently resigned due to age, highlighting the life tenure of US Supreme Court and Federal Court Judges, who can choose to resign while on full pay.
While sitting with these judges in the Federal Appellate Court building in San Francisco, I criticized the 2015 US Supreme Court judgment in Obergefell vs Hodges. This landmark decision, in which Justice Stephen Breyer was part of the 5-4 majority, directed all states in the USA to recognize and register same-sex marriages.
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In that context, I argued that the US Supreme Court’s verdict was erroneous, as it effectively amounted to judicial legislation. I emphasized the importance of judicial restraint and the notion that laws should be enacted by the legislature, not by judges. I stressed that the Constitution maintains a separation of powers, and no one branch of government should encroach upon the domain of another. Making and amending laws is the responsibility of the legislature, not the judiciary.
I referenced a judgment I delivered in the case of Divisional Manager, Aravali Golf Club vs. Chander Haas in 2007. In this judgment, particularly in paragraph 17 onwards, I emphasized the need for judges to recognize their limits and avoid acting like emperors.
Legal Precedents in India
In India, the Supreme Court had previously decriminalized gay relationships in the case of Navtej Singh Johar vs Union of India in 2018.
Additionally, in the case of S. Khushboo vs Kanniammal in 2010, the Supreme Court ruled that live-in relationships were not illegal.
However, it is crucial to note that while these rulings addressed the legality of such relationships, they did not automatically confer legal rights that are typically associated with marriage.
The Court’s Decision
Marriage carries various legal rights, such as inheritance, maintenance, and more. These rights are traditionally established and defined by the legislature, not the judiciary.
Hence, the Supreme Court’s decision to dismiss the petitions is in alignment with the principle that courts should not be in the business of recognizing or defining same-sex marriages.
Instead, the Court suggested that the petitioners should pursue their objectives through the legislative process by approaching parliament or the state legislatures to pass laws recognizing same-sex marriages.
The case was heard by a 5-member bench, and the extensive 10-day hearing led to the verdict being reserved for five months.
While I respectfully submit that the case should have been promptly dismissed with a concise order on the same day, emphasizing the separation of powers and directing the petitioners to approach the legislature for relief, the Court’s considered decision was rendered.
Markandey Katju is an Indian jurist and former Supreme Court judge of India who served as chairman for the Press Council of India. He has also worked as Standing Counsel for the Income Tax Department.
The views expressed in the article are the author’s own and do not represent the editorial policy or views of Global Village Space.