New Delhi: The Supreme Court on Tuesday by a unanimous view refused to strike down provisions of the Special Marriage Act (SMA) meant for the registration of inter-faith couples and also recognised the right of a transgender or inter-sex person to marry a heterosexual person.
Chief Justice of India DY Chandrachud said, “The SMA was enacted to enable persons of different religions and castes to marry. If the SMA is held void for excluding same-sex couples, it would take India back to the pre-independence era where two persons of different religions and caste were unable to celebrate love in the form of marriage”.
The Chief Justice upheld the rights of civil union for queer couples and added that the court cannot either strike down the constitutional validity of SMA or read words into it because of its institutional limitations. He said such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance, but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.
The bench noted that the submissions of the petitioners indicate that this court would be required to extensively read words into numerous provisions of the SMA and other allied laws. The court is not equipped to undertake an exercise of such wide amplitude because of its institutional limitations, said the Chief Justice.
The Chief Justice said 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. “Whether a change should be brought into the legislative regime of the SMA is for Parliament to determine. 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.
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Justice Sanjay Kishan Kaul, in a separate judgment, said it would also not be prudent to suspend or strike down the SMA, given that it is a beneficial legislation and is regularly and routinely used by heterosexual partners desirous of getting married. He agreed with a contention of Solicitor General Tushar Mehta that tinkering with the scope of marriage under the SMA can have a cascading effect across other laws.
