Invoking the spectre of judicial legislation

By refusing to legalise same-sex marriages, the Supreme Court stopped short of protecting the fundamental rights of LGBTQ+ people

- Vrinda Bhandari

In the last two days, the Supreme Court (SC) has passed two significant judgments that will have ramifications for years to come. On Monday, a three-judge bench of the SC rejected a woman’s request to terminate her 27-week-long pregnancy, an ominous sign for the jurisprudence of consent, choice, and reproductive and sexual autonomy. On Tuesday, by a 3-2 majority, the SC virtually rejected all the prayers in a batch of petitions seeking, among other reliefs, marriage equality and a bouquet of rights (such as adoption and insurance benefits) for the LGBTQ+ community.

Justices Ravindra Bhat and Hima Kohli held that an entitlement to a legal union of marriage and a legal framework for queer couples could only be granted through a law enacted by Parliament, and not by the judiciary. Marriage, being a “social institution”, did not vest individuals with an unqualified right to marry. Thus, they said, “All queer persons have the right to choose their partners” but the State cannot be obligated to recognise the “bouquet of rights” flowing from such a relationship. Justice Narasimha joined the majority and held that there was no “unqualified” right to marry, and such a right only arose from a statute or custom. In view of this, the three justices refused to recognise either a right to marry or a right to civil union for queer people.