Judges Should Know Where To Draw The Line So That Judiciary Isn't Seen As Taking Over Executive & Legislative Functions: CJI DY Chandrachud

Judges, however, should be conscious of the line that they must draw in order to sustain the legitimacy and credibility of the judiciary, Chief Justice Chandrachud cautioned. It is important, he said, that society does not perceive courts as being possible avenues to take over the functions of the legislature and the executive.

During a recent conversation at Harvard Law School, the Chief Justice delved into the challenges and responsibilities of the Indian judiciary. This exchange took place on October 21 at a conversation hosted by the Harvard Law School Center on the Legal Profession between Chief Justice Chandrachud and David B. Wilkins, Lester Kissel Professor of Law and Faculty Director of the Center on the Legal Profession on the state of the legal profession and the role of the judiciary in India and around the world.

At Harvard, Chief Justice Chandrachud emphasised the evolving role of courts in societal transformation, particularly in addressing issues of inclusion and LGBTQIA+ rights. “All social transformation takes place in a continuum. Much of the work that we do as judges cannot really be regarded as the last word in the subject, or the end process of the evolution,” the Chief Justice told Professor Wilkins, before offering a concise overview of the historical development of queer rights in India. He touched on key milestones such as the Naz Foundation case (2009), the Kaushal Kishore case (2014), the Navtej Johar case (2018), and the Supreme Court’s recent ruling on marriage equality. On the court’s October 17 verdict refusing the right to marry for queer couples, which many have criticised as a major setback for LGBTQIA+ rights, the Chief Justice said –

“I'm not here to either critique my judgment or defend it, because I think that is for contemporary academics in society and for the posterity to judge. Briefly put, the submission of the petitioners before us was to interpret the Special Marriage Act to read spouse instead of man and woman. We felt that a lot of what the petitioners were seeking from the court was too complex in terms of what the court could do in the exercise of the power of judicial review. On whether there is a fundamental right to marry, all five of us came to the conclusion that marriage has entitlements, which are valuable because those entitlements are recognized by statute. And it is no part of the function of the court in the exercise of its power of judicial review to hold that because those entitlements have become valuable, because their statutory entitlements, because as a consequence to raise them to the level of a fundamental right. So we all concluded by holding that there is no fundamental right to marry.”

About his own dissent, Chief Justice Chandrachud said, “I held that even if there is no fundamental right to marry, the right to enter into a cohabitation-abiding union is a right which traces itself to the constitution. So, Justice Sanjay Kishan Kaul and I traced the right to enter into a union, into constitutional principles, namely the right to life and personal liberty under Article 21 and the right to form associations under Article 19(1)(c). And we said, the right to form an association does not only include the right to form a trade union, but certainly a right to find, to form an abiding personal union with a partner of your choice. Three of our colleagues differed, holding that you cannot allow for raising the right to form a union into a constitutional status. But for me, it’s not enough for constitutional courts to lay down rights without remedies because where there is a right, there has to be a remedy. And therefore in my judgment, which eventually became a part of the dissent, we gave a series of remedies for queer couples.”

After sharing his insights into the recent judgment in Supriyo v. Union of India, Chief Justice Chandrachud emphatically underscored the court’s function in promoting dialogue and understanding within society, moving beyond the conventional role of judicial review. Even when the courts cannot provide the full reliefs sought by citizens, by fostering the dialogue, they enable it to be taken forward. However, while that dialogue is essential for our democracy and the rule of law to be sustained, the chief justice cautioned that judges must draw a line in order to sustain the legitimacy and credibility of the judiciary. He said -

“The dialogue is vital to the sustainment of our democracy and the rule of law. But often courts cannot provide the full relief sought by our citizens. But I believe that that is not the end of the process because by fostering that dialogue, we create spaces in society for citizens to take that dialogue forward. We highlight that dialogue, we give that dialogue a constitutional understanding, conscious as we are of the separation of powers…But it’s important that we as judges also realise and that society also realises that there is a line that we have to constantly draw as judges. And that line-drawing exercise, I think, is equally important to sustain the legitimacy and credibility of courts as institutions because it is important that society does not recognize us as being possible avenues to take over the functions of the legislature and the executive. We are not equipped to do that as judges because we are not elected, nor are we accountable to the electorate. This does not mean that we do not have a function in a constitutional parliament. We have a vital role to play in constitutional parliament, but our role must be understood as the role of judges. And I think we must therefore create a democratic space for discussion, for dialogue, and for possibly fostering that dialogue into the evolution of our own societies in the near and not too distant future.”

He added that the role of being a “centre of entertaining citizens’ grievances”, which went beyond the substantive function of the judiciary in laying down legal doctrines and interpreting the law, was something more fundamental. By bringing those grievances within the framework of the law, the courts allowed for reasoned dialogue.

“…And in promoting that reason dialogue, we foster essential democratic values. This constant flux of dialogue that takes place in the court, is an important area where you can produce a more socially cohesive society. You don’t find this in societies where instead of the rule of law, you find a recourse to arms, a recourse to violence. 75 years down the road from independence, societies like ours have sustained democracy and I’m proud to be a part of this society because of our ability to sustain dialogue and reason. Courts have a very valuable role to play in promoting that culture of understanding, and the culture of reasoned dialogue and reasoned decision-making.”

'Difficult For Courts To Intervene In The Absence Of A Statute' : CJI DY Chandrachud On Marriage Equality Verdict

Reflecting on India’s 75 years since independence, Chief Justice Chandrachud articulated not only the vital role of courts in preserving the rule of law, promoting reason, and fostering a culture of tolerance and inclusion, but also underscored the unique challenges faced by the Indian Supreme Court in managing an unprecedented caseload while maintaining the capacity for principled judgments that shape the nation’s future. While discussing the delicate balance between handling a substantial caseload and addressing cases of constitutional importance, he revealed his mission to establish a permanent constitution bench to focus on critical constitutional cases, ensuring that the court can effectively deal with both individual grievances and broader societal issues.

“I do not think any other supreme court in the world has to deal with that kind of volume of work. At the same time, we have to create that space for ourselves to do the kind of work that is going to make an impact on the future of a good society. So one of my missions as the chief justice has been to set up a permanent constitution bench and we are pretty much on track to do that. We have been hearing important constitutional cases by setting up benches of five or seven judges – cases across the political and the legal spectrum, dealing with Indian federalism, human rights, gender and the law, sexuality, and other interesting cases that look to the future. So the key is really to find this balance between addressing individual grievances and then looking at the broader context of what’s necessary in the life of the nation.”

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