Read Time: 06 minutes
"The Constitution does not expressly recognize 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", top court has held
The Supreme Court today remarked that in the exercise of the power of judicial review, it must be careful not to tread into the legislative domain.
A five-judge bench has made this observation while holding that it cannot either strike down the constitutional validity of Special Marriage Act (SMA) or read words into the SMA because of its institutional limitations.
"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", Supreme Court has held while refusing to grant legal recognition to same sex marriage.
This decision of the Supreme Court has come in the backdrop of it realizing that "the court cannot be the legislature".
The constitutional decision on the permissibility of same-sex marriages hinges on the issue of separation of powers, and the marked domains of the Legislature and the Supreme Court. Resultantly, the Supreme Court is not and cannot be substituted for the Legislature. This is as the Supreme Court has not been afforded the constitutional sanction to undertake decisions that are to do with policy or legislation.
While not granting recognition to same sex marriages, Court has kept in mind that in order to ensure that rights and benefits are afforded to the Petitioners’ within the existing legal framework, a legislative overhaul will be required.
A favourable way forward in this situation might be for the legislature to enact a committee/commission to decide on the various issues enumerated above and provide a road map for the way forward.
This is what the Supreme Court today primarily did when it recorded the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions.
"The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall before finalizing its decisions conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories", the judgment adds.
Court has further directed that the report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories.
The Constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli has been seized with the same-sex marriage petitions since the hearing began on April 18.
Supreme Court on May 11, 2023 had reserved its verdict in the plea’s seeking legal recognition of same sex marriage, after having heard the parties over ten days.
Case Title: Supriyo@ Supriya Chakraborthy vs. Union of India & Anr. (a batch of petitions)
Please Login or Register
