Chief Justice of India (CJI) DY Chandrachud recently emphasized his stance on the marriage equality case during a panel discussion co-hosted by Georgetown University Law Center of Washington DC and Society for Democratic Rights (SDR). He stated,
Thank you for reading this post, don't forget to subscribe!“Chief Justices too have been in the minority. There are thirteen significant cases in which our Chief Justices have indeed been in minority, and I do believe that it’s sometimes a vote of conscience and vote of the constitution and I stand by what I said.”
Addressing the verdict on marriage equality, CJI Chandrachud noted that while all five judges on the bench concurred that LGBTQIA+ individuals had the right to form unions, three judges believed it couldn’t be recognized as a constitutional right, suggesting it was a matter for the Parliament.
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Recalling the 2018 landmark decision that decriminalized consensual same-sex relationships, CJI Chandrachud highlighted the evolution of LGBTQIA+ rights in India. He explained the context of the Special Marriage Act (SMA) of 1954, which was designed for heterosexual couples of different faiths to marry under a secular law. He said,
“Apart from that, that’s where I got into a minority, I said though we cannot entrench into the domain of Parliament, nonetheless there was sufficient foundational principles in the constitution to allow for recognition of same-sex unions in terms of civil unions.”
However, he acknowledged that three other judges felt that recognizing the right to form unions was beyond the judiciary’s domain and should be addressed by the Parliament. He further expressed his minority view on the right of LGBTQIA+ couples to adopt, stating,
“I said queer couples have the right to adopt a child because under Indian law two single individuals can adopt a child.”
Discussing the challenges faced by the judiciary, CJI Chandrachud pointed out the difficulty in intervening in the absence of a statutory regime, especially in a system like India’s with a clear separation of powers. He emphasized the importance of substantive equality over formal equality, especially in the context of affirmative action.
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On the topic of the retirement age of judges, CJI Chandrachud expressed his belief in the significance of a prescribed retirement age, allowing for newer generations of judges to assume roles and potentially correct past decisions. He said,
“..from a purely theoretical construct of constitutional law, I think it’s important that we allow for succeeding generations of judges to assume the mantle of decision-makers and therefore to correct us if we were wrong.”
In conclusion, CJI Chandrachud’s remarks shed light on the complexities and nuances of the Indian judiciary’s approach to evolving societal issues, emphasizing the importance of conscience, the constitution, and the need for flexibility in decision-making.
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