By Justice Markandey Katju–
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)
The Indian Supreme Court in a landmark verdict on October 17 rejected a clutch petitions claiming recognition of same-sex marriage.
In this context, I was reminded of an incident during my visit to California. I was invited by two judges of the Federal Appellate Court (FAC) of California, one of whom, Judge John Breyer is the younger brother of US Supreme Court (SCOTUS) Justice Stephen Breyer who retired in 2022 at 85, citing old age (US Supreme Court and Federal Court judges have a life tenure but can resign on full pay).
While sitting with them in the FAC building in San Francisco, I criticized the SCOTUS judgment in Obergefell vs Hodges, 2015 (Justice Stephen Breyer was part of the 5-4 majority) which had directed all states in the United States to recognize and register same sex marriages.
Some liberal states like California and New York had by legislation recognised such marriages, while others, particularly the southern conservative states, had not. By this judgment, even the latter were directed to recognize them.
I said the SCOTUS verdict was wrong as it amounted to judicial legislation. Judges should exercise judicial restraint, and not be over activist. Laws could be made by the legislature, not by judges. There is separation of powers in the Constitution, and one organ of the state should not encroach into the domain of another.
Making laws is the job of the legislature, not judges.
I referred to my judgment in Divisional Manager, Aravalli Golf Club vs Chander Haas, 2007, 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 decriminalized gay relationships. Also, in S. Khushboo vs Kanniammal, 2010, the Supreme Court had held that live-in relationships were not illegal.
On the other hand, a marriage creates certain rights. For example, a married partner has inheritance rights (either in full or in part) in case the spouse dies. The partner can claim maintenance on separation or divorce.
Legal rights can only be created by the legislature, not the courts.
Therefore, the Indian Supreme Court correctly dismissed the petitions, saying that it was not for courts to recognize same-sex marriages, and that the petitioners should approach Parliament or state legislatures for getting a law passed recognizing same-sex marriages.
The hearing of the case by a five-member Constitutional bench took a marathon 10 days, and the verdict was reserved forfive5 months. I respectfully submit that the case should have been dismissed quickly by a short order the same day saying that judges can not legislate, and the petitioners should approach the legislature for relief.
