Standing by his minority opinion in the recent same-sex marriage ruling by the top court, Chief Justice of India D Y Chandrachud said that often judgments given on issues of constitutional importance are a “vote of conscience”.
“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,” the CJI said answering a question on his minority opinion in the same-sex marriage case, at the Georgetown University’s third edition of the comparative constitutional law discussion co-hosted by the Society for Democratic Rights (SDR), New Delhi, on “Perspectives from the Supreme Courts of India and the United States” in Washington DC.
Responding to a question on what led him to arrive at his decision, the CJI said that the basis for a judge’s decision should not be to give effect to social majority but instead to “constitutional morality” which is grounded in the constitutional values of liberty, equality, fraternity, the right to freedom of speech and expression and the “unique oneness of our civilisation”, among others.
Elaborating on the minority opinion in the five-judge bench ruling, he said there are many foundational constitutional principles which allow for same-sex unions in terms of civil unions such as the right(s) to association, life and liberty, free speech and expression; and conscience.
On the lack of agreement between the bench on key issues like recognising civil unions, he said, “Three of my colleagues recognised the right but said that we cannot elevate this to a constitutional right”, while adding that the majority deemed it best to leave its recognition to the Parliament.
Similarly, he said that he was in the minority by upholding the right of non-heterosexual couples to adopt and said, “In India, an individual man and woman can adopt but same-sex couples cannot adopt jointly. Why should queer couples be deprived of such a right just because they are in a relationship?
“We couldn’t by judicial fiat enter into a very complex area which wasn’t just confined to marriage but went into other areas like adoption, inheritance, succession, tax, etc. Therefore, we said it is for the Parliament to act,” the CJI said.