26 April 2023 10:09 AM GMT
Chief Justice of India DY Chandrachud today expressed his reservation over US Supreme Court's controversial decision in Dobbs v. X which held that there is no constitutional right to abortion."Don't cite Dobbs, we are far beyond it and fortunately so," the CJI promptly remarked when Solicitor General Tushar Mehta cited the judgment to support his argument on limits of judicial power with...
Chief Justice of India DY Chandrachud today expressed his reservation over US Supreme Court's controversial decision in Dobbs v. X which held that there is no constitutional right to abortion.
"Don't cite Dobbs, we are far beyond it and fortunately so," the CJI promptly remarked when Solicitor General Tushar Mehta cited the judgment to support his argument on limits of judicial power with respect to framing of laws, especially in complex social and moral issues.
SG was opposing on behalf of the Union a batch of petitions seeking legal recognition for queer marriages. In this regard he submitted that Roe v. Wade, the 50 years old landmark ruling that established the constitutional right to abortion in the US in 1973, was overturned by the US Supreme Court citing incompetence of the judiciary to legislate and it said that "the authority to regulate abortion is returned to the people and their elected representatives".
"There is no question about it that Judges don't legislate," the CJI remarked, adding:
"...but if you are relying on Dobbs to support that principle then we have gone far beyond Dobbs in India...because Dobbs represent a view of the US Supreme Court that a woman has no control over her own bodily integrity...this theory has been debunked long back in our country...so you are citing the wrong judgment in support of the principles...don't cite Dobbs"
SG then clarified that he is not relying on Dobbs for the subject matter which it decided but only the principle that judiciary cannot legislate. "Abortion is a right of autonomy of a woman, I am not on that point at all..." he added.
CJI then continued, "Our law granted only to a married woman the right obtain an abortion between 20-24 weeks. We dealt with that restriction when an unmarried woman came before us and said I must have equal right to abortion, and we upheld that right...We can credit ourselves that we are far ahead of our time than many of western countries."
SG then reiterated that Dobbs in not relied upon for what was decided on facts of that case. "We have always been ahead of America or any other western country...I am not supporting judgment on abortion rights but a debate when it concerns social implications, rerun it to people's representative...I am citing it only for this limited purpose that this is an issue that must first be debated by Parliament...please forget the abortion part...I also don’t agree with it...your judgment on termination of pregnancy takes care of it," he said.
He further read Justice Thomas Clarence's concurring opinion which suggested that in future cases, Court should reconsider all of its substantive due process precedents.
"But going by this logic, we would be reconsidering etnire line of our precedents from Maneka to Shayara Bano...which is not your submission also," CJI remarked.
"It is not my submission..." SG responded, adding "...but my submission is last part of Justice Alito, social implication- return it to the Parliament."