‘Complex area wasn’t confined to…’: In US, CJI DY Chandrachud explains queer verdict

Chief Justice of India DY Chandrachud, responding to questions on the recent Supreme Court judgment on queer couples, said he believes that “sometimes it’s a vote of conscience”. Referring to his minority judgment, he said there had been only 13 instances when a CJI was in minority.

CJI Chandrachud was speaking at the 3rd Comparative Constitutional Law discussion on the topic ‘Perspectives from the Supreme Courts of India and the United States’, in Washington DC.

“Generally speaking, chief justices have not been in the minority. There are 13 significant cases in our history where chief justices have been in the minority. I do believe that sometimes it’s a vote of conscience and I stand by what I said,” he was quoted as saying by The Indian Express.

Asked what drove him to arrive at his judgment, he said a judge’s decision shouldn’t be based on social majority but constitutional morality.

CJI Chandrachud said many foundational constitutional principles favoured same-sex unions in terms of civil unions, including the rights to association, life and liberty, free speech and expression.

He said three of his SC colleagues recognised this right but refused to elevate it to a constitutional right.

CJI Chandrachud had also allowed non-heterosexual couples to adopt but the majority of the five-judge bench overruled his opinion.

He said on Sunday that when an individual man and woman can adopt in India, why should queer couples be deprived of the right because of their relationship status.

Explaining why the Supreme Court didn’t allow same-sex marriage, he said the apex court couldn’t enter a very complex area which wasn’t confined to marriage but delved into issues like adoption, inheritance, succession and tax. “Therefore, we said it is for the Parliament to act,” the CJI said.

“By the 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, legislating on the right to marry is something that falls within the domain of Parliament,” the CJI added.

Last week, the Supreme Court refused to grant legal recognition to same-sex marriages, saying it was under the purview of Parliament and state assemblies to create such institutions and grant them legal validation. The five-judge bench unanimously allowed the formation of a high-powered committee proposed by the Centre in May to examine the concerns of same-sex couples and moot certain corrective measures.