Amending Special Marriage Act Will Push India Back To Pre-Independence Era: Supreme Court

CJI Chandrachud cautioned against the striking down of the Special Marriage Act and said that that such a move was beyond the court's purview.

Chief Justice of India DY Chandrachud, while reading out the order in the crucial hearing on the matter of same-sex marriage on Tuesday, voiced his concerns that striking down the Special Marriage Act (SMA) would push the country back to the "pre-Independence era." The five-judge SC bench, including Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, emphasized their focus solely on the legal aspects of the Special Marriage Act and the Foreign Marriage Act, clarifying that they were not endorsing non-heterosexual marriages.

Chief Justice Chandrachud cautioned against the striking down of the Special Marriage Act. He also addressed the possibility of the court taking on a legislative role by reading words into the SMA, asserting that such an exercise was beyond the court's purview. "The Court is not equipped to undertake such an exercise of reading meaning into the statute," remarked CJI Chandrachud. He said that any decision to allow same-sex marriage by amending the Special Marriage Act should rest with Parliament.

Citing the need for judicial restraint, Chief Justice Chandrachud reiterated the court's responsibility not to "encroach upon the legislative arm". He affirmed that decisions regarding the amendment of the Special Marriage Act to permit same-sex marriage should be left to the discretion of Parliament.

The Centre has consistently opposed the legalization of same-sex marriage, contending that this matter falls within the jurisdiction of Parliament. Chief Justice Chandrachud, in response to the Centre's stance, asserted, "Queer is a natural phenomenon known for ages; it is neither urban nor elitist."

Underlining the importance of safeguarding the right to marry regardless of sexual orientation, Chief Justice Chandrachud urged the government to move forward with the committee established to address the practical needs of same-sex couples. The Supreme Court, led by Chief Justice Chandrachud, had previously deferred the issuance of a ruling on same-sex marriage petitions after a ten-day hearing in May.