Supreme Court says cannot legalize same-sex marriage
NEW DELHI : The Supreme Court on Tuesday refused to grant legal recognition to same-sex couples and said only Parliament and state legislatures can validate marital unions in a ruling that disappointed millions of lesbian, gay, bisexual, transgender and queer (LGBTQ+) people in India. By a 3-2 majority, the court also declined to grant constitutional protection to civil unions and adoption rights for queer couples, noting that mandating the state to grant recognition or legal status to some unions will violate the doctrine of separation of powers and could lead to unforeseeable consequences.
“This court cannot make law; it can only interpret it and give effect to it. The court, in the exercise of the power of judicial review, must remain clear of matters, particularly those impinging on the policy which falls in the legislative domain," the verdict said.
The Constitution bench—comprising Chief Justice of India (CJI) Dhananjaya Y. Chandrachud and justices Sanjay Kishan Kaul, S.
Ravindra Bhat, Hima Kohli and P.S. Narasimha—was unanimous that the right to marry was not a fundamental right, and said it was beyond the remit of courts to issue a positive direction to the legislature to characterize same-sex marriages and queer relationships through a new instrument of law.
“The directions or orders of this court cannot encroach upon the domain of the legislature," said the unanimous view of the bench, noting that Parliament and state assemblies have enacted laws creating and regulating the sociolegal institution of marriage under the Constitution. But the two sides differed on two key aspects—recognition of civil unions, considered the world over as the first step towards granting full marriage equality, and adoption rights.
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