The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms

The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms

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Volume 16 Issue 4 ()

The recent legal vendetta of Supriya Chakraborty v. Union of India (‘Supriya Chakraborty’) yearns for the recognition of the right to marriage equality through a judicial reinterpretation of various personal and secular laws. Curiously, the respondents have argued that the Supreme Court’s declaration on this matter would trespass into the realm of the Legislature, challenging the sacred principle of separation of powers and endangering the Constitution’s Basic Structure. This essay contends that the respondents’ argument bears considerable merit since the higher judiciary has defiantly stepped beyond its conventional boundaries, venturing into the domains traditionally reserved for the legislature and executive. Nevertheless, the quest for resolving India’s separation of powers conundrum leads this essay to open the door to the Basic Structure doctrine’s application to judicial review — an expansion of scope that neither defies nor eludes possibility — thanks to the Supreme Court’s adept utilisation of the doctrine to review ordinary legislation and executive action. Building upon this, to counter the innate drawbacks of the traditional options available to the Supreme Court in Supriya Chakraborty, the essay proposes a balanced approach: blending the doctrine’s application to Judicial Review with the finesse of dialogic constitutionalism.

Cite as: Pratham Malhotra & Pravertna Sulakshya, The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms, 16 NUJS L. Rev. 1 (2023)