A five-judge Constitution bench presided by Chief Justice of India D Y Chandrachud was responding to arguments that a mere declaration by the court that same-sex couples have the right to marry would not serve the purpose.

“There’s a constitutional doctrine that we have remained constant so — we cannot direct legislation, we cannot direct framing of a policy, we cannot enter the realm of policy-making,” Justice S R Bhat, who was a part of the bench, said.

Senior Advocate A M Singhvi appearing for some of the petitioners told the bench, also comprising Justices S K Kaul, Hima Kohli and P S Narasimha, that a civil union, as permitted in some countries, is not a solution to what same sex couples are asking for. It is not an equal alternative and does not address the constitutional anomaly presented by exclusion of non-heterosexual couples from the institution of marriage, he contended.

Singhvi said by excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and commitments of heterosexual couples.