Same-sex marriage: Court must steer clear of policy matters, says CJI

The court while exercising its power of judicial review must be careful not to tread into matters impinging on policy which falls under the legislative domain, Chief Justice D Y Chandrachud on Tuesday while refusing to either strike down or read words into the Special Marriage Act (SMA) to allow marriage rights to queer couples. The CJI, who was part of a five-judge constitution bench which unanimously refused to accord legal recognition to same-sex marriage under the Special Marriage Act, dealt with the submissions of those urging the bench to strike down or read something into the law to validate such unions.

"This court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This court cannot read words into the provisions of the SMA and provisions of other allied laws such as ... because that would amount to judicial legislation. 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," Justice Chandrachud said in his 247-page verdict.

"We are conscious that the court usually first determines if the law is unconstitutional, and then proceeds to decide on the relief. However, in this case, an exercise to determine whether the SMA is unconstitutional because of under-inclusivity would be futile because of the limitations of this court's power to grant a remedy," Justice Chandrachud said.


Whether a change should be brought into the legislative regime of the SMA is for Parliament to determine, he said.

"Parliament has access to varied sources of information and represents in itself a diversity of viewpoints in the polity. The court in the exercise of the power of judicial review must be careful not to tread into the legislative domain...," he said.

He dealt with the issue of "institutional limitations" with respect to the interpretation of the SMA and said it must be noted that this court in the beginning had restricted the breadth of the challenge to non-personal marriage law.

"If this court takes the second approach and reads words into the provisions of the SMA and provisions of other allied laws such as ..., it would in effect be entering into the realm of the legislature," he said.

This court would in effect be redrafting the law in the garb of reading words into the provisions and it is trite law that judicial legislation is impermissible, he said.