Unenumerated Constitutional Rights: Diluting the Separation of Powers Objection

When courts are faced with claims for unenumerated constitutional rights, it is very common for them to state that the separation of powers requires them to stay away from recognising such rights. I scrutinise the validity of this argument through a close study of Supriyo Chakraborty v Union of India (2024). In Supriyo the Indian Supreme Court refused to recognise the unenumerated constitutional right to marry because such court action was seen as violating the separation of powers. I argue that this reading of separation of powers understands the doctrine as being driven by a singular value: that of maintaining institutional specialisation of State branches. While important, this reading causes separation of powers disputes to become turf demarcation exercises, entirely obscuring rights. It thus takes away from a second key value underpinning the doctrine: its role in preserving rights and protecting rights-holders. When rights preservation is reinstated as a value driving the doctrine, court action to recognise and protect unenumerated constitutional rights – including the right to marry – is no longer inconsistent with the separation of powers. Nor is it a carefully regulated exception it. Rather, it is part and parcel of the doctrine, an essential facet of its demands. Yet, authorising all forms of court action in the name of protecting rights with no institutional constraints whatsoever brings risks of its own. Thus, both the value of rights preservation and that of maintaining institutional specialisation ought to be simultaneously maintained within the separation of powers assessment. For this, rights preservation and democratic protection need to be understood as multi-institutional, collaborative constitutional enterprises, with each State institution contributing in light of its distinct skills. Several parts of the Supriyo dicta, beyond its conclusions on the right to marry, reflect this understanding. Overall, they demonstrate how the Court could have recognised a constitutional right to marry while also respecting the institutional skills of different State branches. The separation of powers objection to court action recognising and protecting unenumerated constitutional rights – as deployed in Supriyo – is therefore diluted.