Chief Justice of India (CJI) DY Chandrachud has said that many times the judgements on Constitutional issues are a vote of conscience and a vote of the Constitution and stressed that he stood by his minority judgement on the marriage equality case. The CJI was speaking in Washington DC, USA, at the Third Comparative Constitutional Law discussion that was held on Monday, October 23 and co-hosted by Georgetown University Law Center of Washington DC and Society for Democratic Rights (SDR). He observed, “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.”
When asked about the verdict in the marriage equality case, he said that while all the five judges on the bench agreed upon the fact that LGBTQIA+ persons had the right to form unions, three of the judges differed by saying that it could not be elevated to a constitutional right and also that it fell under the domain of the Parliament.
CJI Chandrachud also recalled the 2018 decriminalisation of consensual same-sex relationships and said, “In 2018, we reversed a judgement of the Indian SC where we decriminalised consensual relations between adults of the same gender, sex, and that was important in itself, but that was not the end of the evolution of LGBTQIA+ rights in India. We have this clutch of petitions which came up before us for hearing where same sex couples chose to espouse their right to marry under the Indian Constitution. We have a legislation in India called the Special Marriage Act (SMA) of 1954 and the act was basically enacted by the parliament to allow heterosexual couples belonging to different faiths to get married under a secular law because prior to that legislation there was no other choice except for one of the two to convert to the other religion. But this gave you a secular option where you could continue with your faith but get married under the law and the law obviously spoke about heterosexual couples - man and woman. It had different degrees of prohibited relationships for men and a separate set for women,” he explained.
He further said that marriage itself was governed by custom and then codified into statute and added that one of the key questions in the case was if the court had the jurisdiction to essentially get into this domain and to mandate that there was a right to marry under the Indian constitution.
“By an unanimous verdict of all the five judges in the bench, we came to the conclusion that while we have progressed a great deal in terms of decriminalisation of homosexuality, and recognising the people belonging to the queer community as equal participants in our society, legislating on the right to marry is something which falls within the domain of parliament and we couldn't by judicial fiat lay down, enter into a very complex area, which is not just confined to marriage but goes into other areas like adoption, succession, inheritance, tax. Therefore, we said that it was time for the Parliament to act,” 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 constitution to allow for recognition of same sex unions in terms of civil unions, and we grounded that in provisions of our Constitution dealing with right of association, right to life and personal liberty, right to free speech and expression and the right to conscience. Interestingly, the right to conscience is part of the same right under which freedom of religion is recognised. We held that conscience is something much broader than religion. It incorporates your right to follow your own faith, and conscience is incredibly vaster than merely your right to freedom of religion,” he elaborated.
However, he said that three other judges felt that to recognise a right of forming unions was beyond the judicial domain and that it must be left to parliament. “So on the fundamental issue as to whether same sex couples should have the right to form abiding unions and cohabitational relationships, three of my colleagues - though they recognise that they do have the right - they said they cannot elevate this to a constitutional right,” the CJI said.
He continued saying that he was in a minority of two regarding the right of LGBTQIA+ couples’ right to adopt. “I said queer couples have the right to adopt a child because under Indian law two single individuals can adopt a child. So I said if they are together there is no reason to deny them the right to adopt the child merely because they are in queer relationships. There again, three of my colleagues differed, they felt that the absence of a recognition of the right to adopt to queer unions is discriminatory but that's something which has to be addressed by the Parliament,” he said.