New Delhi: The Supreme Court, listening to pleas looking for authorized sanction for same-sex marriage, noticed on Wednesday that it’s a well-settled precept that “judges don’t legislate” and requested the Centre to not cite the US high court docket verdict denying any constitutional proper to abortion in assist of its argument. The Centre referred to the controversial judgement of the US Supreme Court within the Dobbs case in assist of its competition that the judiciary shouldn’t enterprise into the area of the legislature. A five-judge Constitution bench headed by Chief Justice D Y Chandrachud expressed sturdy reservation to the reference, saying the purpose is nicely taken however the case not be known as India has moved far past in recognising the rights of girls. Solicitor General Tushar Mehta, showing for the Centre, argued that the problem of granting authorized sanction forsame-sex marriage be left to Parliament and that it was coping with a “very complex” topic having a really “profound social impact” and about 160 provisions of various legal guidelines must be gone into.
To buttress the submissions, the highest legislation officer referred to the Roe v. Wade case, the 50-year-old landmark ruling of the US high court docket which had established the constitutional proper to abortion in 1973.
He mentioned the US high court docket overturned it within 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 mentioned, “…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.”
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‘You Are Citing A Wrong Judgement’: CJI To SG Mehta
“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 mentioned.
The legislation officer mentioned he was not keen on citing international judgments and referred to it to assist the competition that the problem of same-sex marriage is greatest left to Parliament. He mentioned that he was not citing it for the info 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 mentioned.
The bench, additionally comprising Justices S Ok Kaul, S R Bhat, Hima Kohli and P S Narasimha, referred to a latest apex court docket judgement the place it granted the precise to abortion to single ladies additionally. “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 mentioned.
The bench additionally handled a British judgment through which the tenancy proper of a same-sex surviving accomplice 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 mentioned.
The concept was to guard, as a matter of social welfare, one of many occupants beneath the tenancy legislation, it mentioned. On the problem of the Special Marriage Act, 1954, the bench mentioned that it was meant to be a faith impartial legislation.
“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 mentioned.
