Chief Justice DY Chandrachud Reaffirms His Stand On Same-Sex Marriage At US University (Image: Twitter/Sam_Kanyakumari)
India’s Chief Justice DY Chandrachud reaffirmed his stand on the legal validation of same-sex marriages within the country and said that often rulings on Constitution bounded matters are “vote for conscience”. The Chief Justice was addressing the 3rd Comparative Constitutional Law discussion on “Perspectives from the Supreme Courts of India and the United States”, organised by Georgetown University in Washington DC on Monday. The event was co-hosted by the Society for Democratic Rights (SDR) in New Delhi.
It was recently on October 17, India’s top court – a five-judge constitutional bench led by the Chief Justice – ruled a batch of petitions on whether the queer or other homosexual couples should marry under the legal provisions of Indian Constitution. The bench on producing the judgement refused to legally recognise same-sex marriage within the country by a 3-2 majority and said it is the legislature’s discretion to consider the matter. The Chief Justice was among the ‘2’ minority.
While greeting the Washington university, Mr Chandrachud acknowledged that, there had been only 13 significant judgments when the Chief Justices stood with the minority. Answering a question on his ‘minority opinion’ in the concerned case, he said that, “I do believe it is sometimes a vote of conscience and a vote of the Constitution. And I stand by what I said”. While asked about what made him to arrive at his judgement, he pointed out that a judge’s decision shouldn’t be based on social majority but on “constitutional morality”.
According to him, many basic constitutional principles favoured homosexual unions in terms of civil unions – including the rights to association, life, liberty, free speech, and expression. The judges of the bench also recognised these rights but refused to elevate it to a Constitutional right. He added that the apex court is not supposed to enter and produce and ultimate verdict on matters that are not just confined into marriage but also cross-borders to important concerns like inheritance, adoption, succession, and tax. And that’s why the matter was sent for the Parliament’s discretion. The judges unanimously appreciated the progress of the country which decriminalised homosexuality and started recognising queer people as equal participants of the society.
The case in which the top court produced a verdict on October 17 can considered as an extension to the 2018 SC judgement scrapping the ban on gay sex. The petitioners argued that same-sex couples should be granted the same rights and status as any heterosexual couple. The demand included matters of marriage, adoption, succession, inheritance, surrogacy, and divorce. The constitution bench began hearing on the matter on April 18, and the hearing went on for nearly 10 days. The five-judge bench reserved the judgement on May 11, over 20 petitions.
The bench consisted of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha. While the Chief Justice and Justice Kaul supported the matter, the others opposed it. The court recorded the statement of the central government, produced by Solicitor General Tushar Mehta, to constitute a committee to examine the rights and benefits that can be given to queer couples. However, the central government, ruled by the Bharatiya Janata Party under the incumbent Prime Minister Narendra Modi, strongly objected the matter, as the demand destructs the traditional Indian concept of marriage and family, which are defined as consisting of “father, mother, and children”.
