Rights Recognised In Judgments Continue To Remain A Pipe Dream For Marginalised Groups : CJI DY Chandrachud

While speaking with Professor Vikramaditya Khanna, a professor of law at the University of Michigan Law School, Chief Justice of India DY Chandrachud said that the rights recognized by the Courts in judgment, such as abortion rights, remain unattainable for many marginalized groups.

"The rights which have been recognised in judgements like this continue to remain a pipe dream for many marginalised groups even today which is really a sobering reflection for us judges", he said.

The Chief Justice was being conferred with the Award for Global Leadership in recognition of his lifetime of service to the legal profession in India and around the world by the Harvard Law School Center on the Legal Profession. Prof Khanna had asked CJI Chandrachud about his judgement in X vs Principal Secretary, Health and Family Welfare Department, where the Supreme Court of India had held that unmarried women were also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. 

CJI DY Chandrachud, while stating that the decision in question was rooted in the constitutional values of dignity and reproductive autonomy as well as India's obligations under international law said–

"What the judgement dealt with was this – the statute recognised the right to abortion up to a particular period for all women but then gave an extended period for women who were not single, essentially women in marital relations. That was questioned before us in the context of a young woman who had a near term pregnancy. She wanted to abort. Judicial decisions are the first proverbial step in the journey of 1000 miles. Much remains to be done to enforce and perfect these rights on the ground."

Recalling the matter, he stated that when the case had come up before the court, the first thing they had to do was to do justice to the litigant who was before the court. He added that the litigant was running out of time and thus the court allowed her to be examined at a government hospital in Delhi which submitted a report to the court stating that the abortion would not pose a danger to the litigant's life. CJI Chandrachud said–

"The rights which have been recognised in judgements like this continue to remain a pipe dream for many marginalised groups even today which is really a sobering reflection for us judges. Globally speaking, abortion has been a sensitive issue because of cultural and religious factors. Courts in many countries will be deciding on many such issues and they will be required to abide by their laws. However, for many of these countries, which are signatories to international instruments such as the ICCPR, CEDAW, it is crucial to use these instruments as guiding lights. Without sounding patronising at all, I think many Western democracies only look at developments in each other's jurisdictions. Perhaps, it is time to look at jurisdictions in the global South for seeking some inspiration and innovative legal thinking."

The Chief Justice also highlighted that courts have limitations so expansion of boundaries must take place by social movements both by intellectual means in law schools and outside. He added

"Reproductive autonomy and control over a woman over her own body and mind are crucial to the constitutional goal of realising human dignity. This is just non-negotiable. We have tried to expound upon this not just in the abortion context but on various facets such as the entry of women to the armed forces. We recognise that the element of autonomy resides within each woman entitling her to take crucial decisions on these vital aspects of her own well-being which are crucial to realising a constitutional culture based on the realisation of rights."

When asked by Prof Khanna if he relied on scholarly articles in his own judgments, the Chief Justice stated that he had relied on scholarly articles in judgements including the judgment recognising privacy as a fundamental right, the judgement decrimininalising homosexuality in India, and in a case of affirmative action and contours of merits. He said–

"Scholarly articles are a confluence of theory and practice. They can help trace legal history. It's not just articles but to my mind art, literature, poetry, that can also enumerate law by helping us be compassionate. We need to look beyond the black letter of law. In my judgement decrimininalising homosexuality I started with a poem."

"Our lives are enriched by interacting with others. Judges lead very isolated lives. That's one of the flipside. That sense of isolation which can be dangerous for robust judging, can be overcome when we look beyond the confines of just law. Cynicism can take place. My answer is to connect with people in terms of their written work, or their art, music, paintings. There's an element of humanity that binds us," he said. 

Also from the session :

'Avoid Tendency To Glorify Over-Work; Mental Health Important For Lawyers' : CJI DY Chandrachud

Legal Profession Feudalistic; Unwelcoming Of Women, Marginalised Communities: CJI Chandrachud Speaks About His Harvard Law Thesis & More