'Difficult For Courts To Intervene In The Absence Of A Statute' : CJI DY Chandrachud On Marriage Equality Verdict

Speaking of his minority judgment in the recent verdict on the same sex marriage, Chief Justice of India DY Chandrachud said that it is sometimes a vote of conscience and a vote of the Constitution and that he stands by what he said."I do believe it's sometimes a vote of conscience and a vote of the Constitution and I stand by what I said" he said at a panel discussion on 'Perspectives from the Supreme Courts of India and the United States', hosted by Georgetown University in Washington, DC. Last week, the Supreme Court refused to grant legal recognition for queer marriages in India saying that it is a matter for the legislature to decide. However, all the judges on the bench agreed that the Union of India, as per its earlier statement, shall constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a "marriage". The Court also unanimously held that queer couples have a right to cohabit without any threat of violence, coercion of interference; but refrained from passing any directions to formally recognize such relationships as marriages. CJI Chandrachud, in his judgment held that queer couples have a right to seek recognition of their union. CJI held that freedom of queer community to enter into unions is guaranteed under the Constitution. However, the majority comprising Justices S Ravindra Bhat, Hima Kohli and PS Narasimha did not agree with the CJI on the right of queer individuals to enter into a civil union. At the same time, the CJI held that the Court cannot strike down or read down the provisions of the Special Marriage Act owing to "institutional limitations" as the same would fall within the domain of the Parliament and the Legislature. In his judgment, the CJI also held that transgender persons in heterosexual relationships had the right to marry under the existing laws including personal laws. Further, he held that unmarried couples, including queer couples, could jointly adopt a child. On The Same Sex Marriage Verdict Answering questions on the recent verdict at the event, the Chief Justice said that the ruling has given emphasis to certain rights of same sex couples including the right to choose your own partner and the right to cohabit. He pointed out that there have only been 13 significant cases in Indian history where Chief Justices have been in a minority.“In my judgment I have specifically said that there are certain values in a marital relationship which find an emanation in the fundamental constitutional values . I've emphasized the right of choice, the right to choose your own partner, the right to cohabit with a person of your choice and therefore the right to find someone with whom you want to live your life or to be a part of your own emotional, psychological and social being as a partner. So I do believe that in my judgment I have given vent to those basic aspirations of constitutional jurisprudence,” he said.However, he said that it becomes difficult for the Court to intervene in the absence of a statutory regime, and in a system like India's where there is a separation of powers between the legislature, executive and the judiciary.“The difficulty which judges face is, in the absence of a statutory regime, do courts have the authority, in a system where there is a separation of powers, to create an alternate statutory regime? So it's far easier for the courts to wield the power of judicial review when you're applying a piece of legislation which is discriminatory, as opposed to an appeal to the court to laying down an entirely new legislative regime”.He said that if the state were to enact a law which specifically discriminates against marital choice or the choice of a person to marry outside their caste or religion, that would be amenable to judicial review. But in the absence of a statutory regime, the difficulty to intervene arises.He pointed out that an argument raised in the same-sex marriage case was that the special Marriage Act, 1955 is discriminatory because it applies only to heterosexual couples. However, he was of the view that striking it down would cause more harm than good. “Now if the court were to strike down that legislation, the consequence would be that you would be going back to the position as it stood even before independence, where there was no legislation at all for people belonging to different faiths to get married. So striking down legislation, which is really the classical power of judicial review would not be adequate in itself. Because you would would be coming out with a prescription, which is worse than the disease itself. So what does a court do? Does a court have the power in a democracy to lay down new legislative mandates? That's where the difficulty really arises. Can the court in that sense fashion a new legislative ordering? or does that court then defer to the legislature?” he said.“For judges, it's more within judicial review if you...

'Difficult For Courts To Intervene In The Absence Of A Statute' : CJI DY Chandrachud On Marriage Equality Verdict

Sheryl Sebastian

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