Judges Should Know Where To Draw The Line So That Judiciary Isn't Seen As Taking Over Executive & Legislative Functions: CJI DY Chandrachud

Chief Justice of India DY Chandrachud has stressed the role of the judiciary in not only ensuring social stability but also fostering a culture of tolerance and inclusion. Courts, he said, played the vital function of promoting dialogue and reason in society. Even when the dialogue that begins in the courtroom does not result in the constitutional and legal relief sought by citizens, it is not the end of the process since it results in space being created in society to “take the dialogue forward”. Judges, however, should be conscious of the line that they must draw in order to sustain the legitimacy and credibility of the judiciary, Chief Justice Chandrachud cautioned. It is important, he said, that society does not perceive courts as being possible avenues to take over the functions of the legislature and the executive. During a recent conversation at Harvard Law School, the Chief Justice delved into the challenges and responsibilities of the Indian judiciary. This exchange took place on October 21 at a conversation hosted by the Harvard Law School Center on the Legal Profession between Chief Justice Chandrachud and David B. Wilkins, Lester Kissel Professor of Law and Faculty Director of the Center on the Legal Profession on the state of the legal profession and the role of the judiciary in India and around the world. At Harvard, Chief Justice Chandrachud emphasised the evolving role of courts in societal transformation, particularly in addressing issues of inclusion and LGBTQIA+ rights. “All social transformation takes place in a continuum. Much of the work that we do as judges cannot really be regarded as the last word in the subject, or the end process of the evolution,” the Chief Justice told Professor Wilkins, before offering a concise overview of the historical development of queer rights in India. He touched on key milestones such as the Naz Foundation case (2009), the Kaushal Kishore case (2014), the Navtej Johar case (2018), and the Supreme Court’s recent ruling on marriage equality. On the court’s October 17 verdict refusing the right to marry for queer couples, which many have criticised as a major setback for LGBTQIA+ rights, the Chief Justice said – “I'm not here to either critique my judgment or defend it, because I think that is for contemporary academics in society and for the posterity to judge. Briefly put, the submission of the petitioners before us was to interpret the Special Marriage Act to read spouse instead of man and woman. We felt that a lot of what the petitioners were seeking from the court was too complex in terms of what the court could do in the exercise of the power of judicial review. On whether there is a fundamental right to marry, all five of us came to the conclusion that marriage has entitlements, which are valuable because those entitlements are recognized by statute. And it is no part of the function of the court in the exercise of its power of judicial review to hold that because those entitlements have become valuable, because their statutory entitlements, because as a consequence to raise them to the level of a fundamental right. So we all concluded by holding that there is no fundamental right to marry.” About his own dissent, Chief Justice Chandrachud said, “I held that even if there is no fundamental right to marry, the right to enter into a cohabitation-abiding union is a right which traces itself to the constitution. So, Justice Sanjay Kishan Kaul and I traced the right to enter into a union, into constitutional principles, namely the right to life and personal liberty under Article 21 and the right to form associations under Article 19(1)(c). And we said, the right to form an association does not only include the right to form a trade union, but certainly a right to find, to form an abiding personal union with a partner of your choice. Three of our colleagues differed, holding that you cannot allow for raising the right to form a union into a constitutional status. But for me, it’s not enough for constitutional courts to lay down rights without remedies because where there is a right, there has to be a remedy. And therefore in my judgment, which eventually became a part of the dissent, we gave a series of remedies for queer couples.” After sharing his insights into the recent judgment in Supriyo v. Union of India, Chief Justice Chandrachud emphatically underscored the court’s function in promoting dialogue and understanding within society, moving beyond the conventional role of judicial review. Even when the courts cannot provide the full reliefs sought by citizens, by fostering the dialogue, they enable it to be taken forward. However, while that dialogue is essential for our democracy and the rule of law to be sustained, the chief justice cautioned that judges must draw a line in order to sustain the legitimacy and credibility of the judiciary. He said - “The dialogue is...

Judges Should Know Where To Draw The Line So That Judiciary Isn't Seen As Taking Over Executive & Legislative Functions: CJI DY Chandrachud

Awstika Das

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