The Supreme Court, hearing pleas seeking legal sanction for same-sex marriage, observed on Tuesday that it is a well-settled principle that "judges don't legislate" and asked the Centre not to cite the US top court verdict denying any constitutional right to abortion in support of its argument.
The Centre referred to the controversial judgement of the US Supreme Court in the Dobbs case in support of its contention that the judiciary should not venture into the domain of the legislature.
A five-judge Constitution bench headed by Chief Justice DY Chandrachud expressed strong reservation to the reference, saying the point is well taken but the case not be referred to as India has moved far beyond in recognising the rights of women.
Solicitor General Tushar Mehta, appearing for the Centre, argued that the issue of granting legal sanction for same-sex marriage be left to Parliament and that it was dealing with a "very complex" subject having a very "profound social impact" and about 160 provisions of different laws would have to be gone into.
To buttress the submissions, the top law officer referred to the Roe v. Wade case, the 50-year-old landmark ruling of the US top court which had established the constitutional right to abortion in 1973.
He said the US top court overturned it in the Dobbs case in 2022, citing incompetence of the judiciary to legislate and noting that "the authority to regulate abortion is returned to the people and their elected representatives".
In response, Chief Justice Chandrachud said, "...these judgements which you (solicitor general) have cited on the limits of judicial power...the principle of law is well settled. There is no question about it that judges don't legislate. The power to frame law, looking at different social complexities, lies with the legislature. That principle is a well-settled principle."
"But if you are relying on the Dobbs (case) in support of that principle then we have gone far beyond the Dobbs in India. Because, it represents a view in which the American Supreme Court said that women have no bodily control over their own bodily integrity. This theory has been debunked long back in our country. So, therefore, you are citing a wrong judgement. I have pronounced a judgement in support of that principle," the CJI said.
The law officer said he was not fond of citing foreign judgments and referred to it to support the contention that the issue of same-sex marriage is best left to Parliament.
He said that he was not citing it for the facts of that case.
"Fair enough, But don't cite Dobbs. Because, we have gone far beyond the Dobbs here. And, fortunately so. We can give credit to ourselves that we are far ahead of western countries,” the CJI said.
The bench, also comprising Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, referred to a recent apex court judgement where it granted the right to abortion to unmarried women also.
"For instance our law granted only married women the right to obtain an abortion between 20 and 24 weeks (of pregnancy). We dealt with that. Unmarried women came to us and said that they must get this right as well. And we upheld that right. We have gone far beyond...,” the bench said.
The bench also dealt with a British judgment in which the tenancy right of a same-sex surviving partner was upheld and granted.
"The idea is that when a tenant dies and anybody, who is in the settled residence and the member of the family, is also entitled for protection of tenancy. Which otherwise is a heritable asset. That is the principle and the Gaidan (British judgment) also did the same thing. Saying, well if you have a same-sex partner, even though the statute does not recognise the same-sex surviving spouse, you can have the tenancy right,” it said.
The idea was to protect, as a matter of social welfare, one of the occupants under the tenancy law, it said. On the issue of the Special Marriage Act, 1954, the bench said that it was intended to be a religion neutral law.
"The idea was to create a platform for partners who do not marry within their personal law. In that sense this is religion neutral. The whole object was to permit two individuals who profess different faiths or belong to different castes (to marry)," the CJI said.
