Same sex marriage: Navigating equality’s Constitutional crossroads

Judiciary can only interpret, not change laws


June 7, 2023

/ By and / New Delhi

Same sex marriage: Navigating equality’s Constitutional crossroads

To uphold the equality principle, the Supreme Court of India has heard petitions regarding same-sex marriages (Photo: Aman Kanojiya/MIG))

India has been taken up over the same sex marriage issue where the Supreme Court has been hearing a petition asking for legalisation of same sex marriages in India to uphold principle of equality as enshrined in the Constitution. However, the court can only interpret and implement the laws, not modify them.

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Over the past few weeks, the Supreme Court of India has been hearing petitions about recognising same sex marriages in order to uphold the principle of equality, one of the basic values of the Indian Constitution. The issue is indeed a complex one.

“Is it an issue of Constitutional confluence for a judicature, or calls for an enacting indulgence of a legislature — a consequential question?” In the realm of societal progress, the issue of marriage equality for a homogenous society delves deep into the intricate interplay between the judicature and the legislature.

In this pursuit, a Constitution bench, led by Chief Justice of India D Y Chandrachud, engaged in a 10-day deliberation, ultimately reserving judgment on May 11.

Delving into the heart of this multifaceted matter, it is crucial to shift our focus from the polarising question of whether same-sex marriage should be legalised or not and instead explore the intricate dynamics that emerge when addressing this present issue. By deftly navigating the complex Constitutional compass, the intersection of established fundamental rights and the prospect of establishing new rights through legislative action, we can chart a course that respects the principles of justice, equality, and the separation of powers.

Within this context, the question naturally arises concerning the role and authority of the judiciary in legalising same-sex marriage. Therefore, it is crucial to understand that the judiciary’s power lies in interpreting the law, not altering legislation itself. The doctrine of separation of powers requires that any modifications to the law follow the prescribed legislative process. It is a process that involves introducing, debating, and passing bills within the legislative branch, while seeking approval from the executive branch in systems that maintain this division.

Thus, while the judiciary has the authority to render a judgment legalising same-sex marriage, it does not possess the power to unilaterally change legislation to give effect to this judgment. This responsibility lies squarely with the legislature, which serves as the legislative embodiment of the people’s will to reflect the evolving norms and values of society.

Yet, and still, in our quest for marriage equality, it is essential to critically analyse the scope of Article 141 of the Indian Constitution in designing a judicial legislation.

This article aims to unravel the intricacies surrounding the question whether Article 141 empowers the Supreme Court of India to enact legislation? Let us peruse the conundrum presented by Article 141, which states, “The law declared by the Supreme Court shall be binding on all courts within the territory of India.

At first glance, it may appear that Article 141 bestows the judiciary with the authority to draft judicial legislation. This notion finds support in the case of D K Basu vs State of West Bengal (AIR 1997 SC 610), where guidelines pertaining to custodial deaths and the rights of accused persons were formulated by the Supreme Court. However, it is crucial to recognise that these guidelines were aligned with the existing provisions of the Constitution, particularly Articles 21 and 22 of the Constitution of India.

Analysing the present situation, we extrapolate whether the term law under Article 141 encompasses legislation. In this context, the Dictionary of Law (4th edition) by P H Collin says that the term “declared,” signifies “having been made public or officially stated.” Conversely, “enact” denote “to make a law.” Thus, Article 141 employs the phrase “a law declared” and not “a law enacted”. Accordingly, a judgment rendered by the Supreme Court is considered a law declared, not enacted, or legislated, as the court’s role is to rectify errors in previous enactments or declare the rights conferred by the Constitution of India.

Therefore, the initial approach of the court would be to issue a representation to the legislature, urging them to take necessary action. Only when the legislature refuses to enact legislation should the court intervene. Judicial legislation should be a last resort, implemented only when there is a substantial violation of fundamental rights due to the absence of appropriate law and the legislature’s refusal to rectify the situation.

Even in such circumstances, judicial legislation should be approached cautiously. Throughout history, there have been no instances where courts have enacted legislation. Some decisions may be perceived as legislation, but even then, the court merely issues guidelines to be followed or interprets certain rights.

For this, placing our reliance on comparative jurisdiction, it becomes evident that worldwide, from countries like Spain, South Africa, Sweden, New Zealand, to Australia, it has been the Parliament, not the courts, that has addressed the issue of legalisation of same-sex marriage. Drawing parallels with the present issue of same-sex marriage before the Supreme Court of India, it is noteworthy to consider the case of Costa Rica, where the Supreme Court ruled the ban on same-sex marriage as unconstitutional but subsequently handed the matter over to the government to take action within a limited time frame of 18 months.

Moreover, even assuming hypothetically that the Supreme Court of India embarks upon judicial legislation to legalise same-sex marriage, the restriction under Article 141 prevails. The judicial law would apply to “all courts within the territory of India,” which should not be misconstrued as encompassing the entirety of the country.

Therefore, as we navigate this constitutional terrain, let us uphold the delicate balance between the judiciary and the legislature, respecting their respective roles in the pursuit of a just and inclusive society. Hence, the path forward is akin to uncharted waters, where the dice favour the legislature due to imposed restrictions on judicial powers in drafting legislation.

As we contemplate the way forward, marriage equality requires a harmonious interplay between the judiciary and the legislature. While the Supreme Court’s judgment holds weight and serves as a beacon of progress, it is the legislature that can translate this vision into a concrete reality. By taking the initiative to enact legislation, lawmakers can ensure that marriage equality is not only recognised legally but also embedded within the social fabric of our nation.

Embarking on this transformative journey, let us remember that the goal is not only legal recognition but also the genuine acceptance and inclusion of all individuals in society. So, the forthcoming judgment of the Supreme Court of India holds immense significance, as it has the potential to reshape the legal landscape and usher in a new era of inclusivity and equality, and serves as a catalyst for change, inspiring legislators to seize the opportunity and enact laws that reflect the aspirations of a progressive society.

(Sonal Gupta and Divik Mathur are both practicing advocates at the Supreme Court of India. The views expressed here do not necessarily reflect those of Media India Group.)



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