Justice Katju's opinion on Indian Supreme Court verdict on same sex marriage

Amalendu Upadhyaya
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Indian Supreme Court verdict on same sex marriage

Justice Katju's opinion on Indian Supreme Court verdict on same sex marriage
Justice Katju's opinion on Indian Supreme Court verdict on same sex marriage

By Justice Markandey Katju

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

In this connection I may refer to an incident in California.

When I was there I was invited by two Judges of the Federal Appellate Court of California, one of whom, Judge John Breyer, was the younger brother of US Supreme Court Stephen Breyer, who was then a sitting US Supreme Court Justice, but has recently resigned as he had become too old (US Supreme Court and Federal Court Judges have a life tenure but can resign on full pay).

While sitting with them in the Federal Appellate Court building in San Francisco, I criticised the US Supreme judgment in Obergefell vs Hodges, 2015 (in which Justice Stephen Breyer was part of the 5-4 majority) which had directed all states in USA to recognise and register same sex marriages.

Now some liberal states like California and New York had by legislation recognised such marriages, while others, particularly the southern conservative states, had not. Now by this judgment even the latter were directed to recognise them.

I said that the US Supreme Court verdict was wrong as it amounted to judicial legislation. Judges should excercise judicial restraint, and not be over activist. Laws could be made by the legislature, not by judges. There was separation of powers in the Constitution, and one organ of the state could not encroach into the domain of another. Making laws was the job of the legislature, not of judges.

In this connection I referred to my judgment in Divisional Manager, Aravali Golf Club vs Chander Haas, 2007 (see para 17 onwards), in which I said that Judges should know their limits, and not behave like Emperors.

No doubt the Indian Supreme Court in Navtej Singh Johar vs Union of India, 2018 had decriminalised gay relationships

Also, in S. Khushboo vs Kanniammal, 2010, the Supreme Court had held that live-in relationships were not illegal

However, such relationships did not create any rights.

On the other hand, a marriage creates certain rights e.g. a partner to the marriage has the right to inherit the property (or part of the property) of the other partner on the latter's death, claim maintenance on separation or divorce, etc.

Legal rights can only be created by the legislature, not the courts.

Hence the Supreme Court rightly dismissed the petitions, saying that it was not for courts to recognise same sex marriages, and the petitioners should approach parliament or the state legislatures for getting a law passed recognising same sex marriages.

The hearing of the case by a 5-member bench took a marathon 10 days, and the verdict was reserved for 5 months. I respectfully submit that the case should have been dismissed quickly by a short order the same day saying that judges cannot legislate, and the petitioners should approach the legislature for relief.

(Justice Katju is a retired judge of the Supreme Court of India. These are his personal views.)

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