Chief Justice’s “Vote Of Conscience” Remark On Marriage Equality Judgment

New Delhi:

Chief Justices have been in the minority in 13 significant judgments, Chief Justice of India DY Chandrachud has said, standing by his recent ruling in the marriage equality case. He was speaking yesterday at the 3rd Comparative Constitutional Law discussion on ‘Perspectives from the Supreme Courts of India and the United States’, hosted by Georgetown University in Washington, DC

“I do believe it is sometimes a vote of conscience and a vote of the Constitution. And I stand by what I said,” the Chief Justice said on the Supreme Court’s October 17 judgment in which it stopped short of legalising same-sex marriages.

All the judges on the five-member Constitution bench agreed that tweaking laws to bring about marriage equality would amount to encroaching into the legislature’s domain. There was, however, a difference of opinion on the question of the right to civil union and adoption rights. Chief Justice Chandrachud and Justice SK Kaul were in favour of recognising same-sex unions. The majority of the bench took a different view, with Justice S Ravindra Bhat saying he disagreed with the court directing the State to provide for a new legal framework to formalise such relationships.

The Chief Justice also stood by the Supreme Court’s judgment of leaving the decision on marriage equality to Parliament.

“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 Chief Justice said.

In his judgment in the closely-watched case, the Chief Justice had said choosing a life partner is an integral part of choosing one’s course of life. “Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21,” he said.

“The right to enter into union includes the right to choose one’s partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples,” the Chief Justice said, adding, “the right to enter into union cannot be restricted on the basis of sexual orientation”.

Supporting adoption rights for queer couples, he said there is nothing to probe that only heterosexual couples can provide stability to a child. “There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” he said.