Bolo Toh Jaane — Audi Alteram Partem: Re, Same-Sex Marriage Case
#BoloTohJaane — An initiative of The Sangyan and curated by Adv. Abhishek Kumar, to break the ‘spiral of silence’, based on the principle of ‘Audi Alteram Partem’ (“hear the other side”) and understanding of “let’s agree to disagree and respect each other’s ‘right to be wrong’”.
Let the śāstrārtha continue.
Audi Alteram Partem: Re, Same-Sex Marriage Case
Article 50 of the Constitution of India provides for the “Separation of judiciary from executive. — The State shall take steps to separate the judiciary from the executive in the public services of the State.”
In Kesavananda Bharti vs. State of Kerala, Hon’ble Chief Justice Sikri observed: “Separation of powers between the legislature, the executive and the judiciary is a part of the basic structure of the Constitution; this structure cannot be destroyed by any form of amendment.” [AIR 1973 SC 1461 at page no. 1535].
In essence, in my opinion, the Supreme Court of India did the right thing by not giving effect to ‘Judicial Overreach’ (when the courts are not merely interpreting the law but rather start legislating the law) and passed the baton to the Parliament of India (the right and just constitutional forum to address the issue having legal, social and political dimensions).
The appropriate constitutional mechanism and process will ensure the ‘Triple Chain of Accountability’ [Permanent and Temporary Executive (Bureaucracy and Government) answerable to Parliament/Legislative Assembly, who in turn are accountable to the Will of People (We, The People of India)] and ergo, will deliver a more sustainable change.
For reference, CJI Chandrachud had stated, “this Court would in effect be redrafting the law(s) in the garb of reading words into the provisions”, essentially violating the doctrine of separation of powers”. Additionally, agreeing with Justice Bhat, Justice Narasimha had stated that “mandating the state to recognise a civil union, would violate the doctrine of separation of powers”.
Case in Point: Supriyo @ Supriya Chakraborty & Anr. vs Union of India | 2023 INSC 920 | Writ Petition (Civil) №1011 of 2022 | https://main.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf
About The Author
Adv. Abhishek Kumar, Founder and Curator, The Sangyan
Advocate, Bar Council of Delhi (2021)
B.A., LL.B. [Batch of 2015–2020]
National Law University, Delhi
