'A vote of conscience': Why CJI differed with colleagues in same-sex marriage verdict

Justice Chandrachud, who is in the US, referred to the Special Marriage Act and said it was a secular law to deal with the marriage of heterosexuals belonging from different religions and striking down some of its provisions for not allowing same-sex marriages would have amounted to coming out with a prescription "worse than the disease itself".

New Delhi: Chief Justice of India D Y Chandrachud has said that fashioning entirely a "new legislative regime" to allow same-sex marriages falls under the domain of Parliament and striking down provisions of the Special Marriage Act for it would have amounted to coming out with a prescription "worse than the disease itself".

The observations on recent same-sex marriages verdict and other key aspects of the Indian judiciary were made by the CJI in the 3rd Comparative Constitutional Law discussion co-hosted by the Georgetown University Law Center, Washington and the Society for Democratic Rights (SDR), New Delhi on the topic - 'Perspectives from the Supreme Courts of India and the United States'.

Justice Chandrachud, who is in the US, referred to the Special Marriage Act and said it was a secular law to deal with the marriage of heterosexuals belonging from different religions and holding some of its provisions for not allowing same-sex marriages would not have been the perfect thing.

"It was argued that the Special Marriage Act is discriminatory because it applies only to heterosexual couples. Now, if the Court were to strike down that legislation, the consequence would be as I said, in my judgement, it would amount to going back to the position as it obtained even before independence, which was that there was no legislation at all for people belonging to different faiths to get married.

"So striking down the legislation... would not be adequate and would have been like coming out with a prescription which is worse than the disease itself," the CJI said on Monday.

So one of the key questions was, does the court have the jurisdiction to essentially get into this domain and to mandate that there is a right to marry under the Indian Constitution, the CJI said.

"By a unanimous verdict of all the five judges on the bench, we came to the conclusion that while we have progressed a great deal in terms of decriminalising homosexuality, and recognising people belonging to the queer community, as equal participants in our society. But legislating on the right to marry is something which falls within the domain of Parliament, and we couldn't by judicial decisions, lay down the law and venture into a very complex area which is not just confined to marriage, but which goes into other areas like marriage adoption, succession, inheritance tax," he said.

On October 17, a five-judge Constitution bench headed by the CJI unanimously refused to accord legal recognition to same-sex marriage, saying there was "no unqualified right" to marriage.

However, the CJI and Justice S K Kaul were in minority on the issues of right to form civil union and right of adoption of queer couples.

The CJI spoke candidly about him being in minority in the same-sex marriage judgements rendered by four judges of the Constitution bench.

He said the CJIs have been in minority on rare occasions.

"But there are 13 significant cases in our history where the Chief Justice has been in a minority. And, I do believe, sometimes it is a vote of conscience and a vote of the Constitution and I stand by what I said," the CJI said.

"Therefore, we said that, well, it's time for Parliament to act. Apart from that, that's where I got into a minority. I said, though we cannot therefore entrench into the domain of Parliament. Nonetheless, there were sufficient foundation principles in our Constitution, to allow for recognition of same sex unions in terms of civil unions," he elaborated.

"Three of my colleagues, another colleague joined me in this, but three of my colleagues felt that to recognise a right of forming unions was again beyond the judicial domain, and that it must be left to Parliament," he said.

On the fundamental issue as to whether same sex couples should have the right to form binding unions and cohabit traditional relationships, three of my colleagues, though they recognised that they do have the right, said, "we cannot elevate this to a constitutional right", the CJI said.

"The other area in which I was in a minority was whether same sex couples have the right to adopt... I said that well, same sex couples, queer couples have the right to adopt a child because under Indian law, a single individual can adopt a child, a woman 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 a queer relationship," he said.

"So on the broader aspect, there was a unanimity, but on the right to form unions and adoptions, I was in a minority of two as against three of my colleagues," the CJI said.

He also referred to the 2018 by judgement and said that the top court had decriminalised same sex consensual relations between adults of the same gender or sex.

"And that was important in itself. But that was not the end of the evolution of LGBTQ rights in India. And, 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," he said.

He dealt with the Special Marriage Act of 1955 and said it was enacted to allow the heterosexual couples belonging to different faiths to get married under a secular law.

"Because prior to this legislation, there was no other choice except for one of the couples to convert to another religion, but this gave a secular option where you could continue with your faith and yet get married under the law," he said.

He also talked about social and constitutional morality and said, "To my mind what a judge decides while interpreting the Constitution is a sense of constitutional morality, and constitution morality is something which is grounded in the fundamental values of the Constitution."

The CJI and Associate Justice of the United States Supreme Court Stephen Breyer spoke at the occasion and the conversation was moderated by William M Treanor, Dean & Executive Vice President, Georgetown University Law Center.