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

Speaking of his minority judgment in the recent verdict on the same sex marriage, Chief Justice of India DY Chandrachud said that it is sometimes a vote of conscience and a vote of the Constitution and that he stands by what he said.

"I do believe it's sometimes a vote of conscience and a vote of the Constitution and I stand by what I said"  he said at a panel discussion on 'Perspectives from the Supreme Courts of India and the United States', hosted by Georgetown University in Washington, DC.

Last week, the Supreme Court refused to grant legal recognition for queer marriages in India saying that it is a matter for the legislature to decide. However, all the judges on the bench agreed that the Union of India, as per its earlier statement, shall constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a "marriage". The Court also unanimously held that queer couples have a right to cohabit without any threat of violence, coercion of interference; but refrained from passing any directions to formally recognize such relationships as marriages.

CJI Chandrachud, in his judgment held that queer couples have a right to seek recognition of their union. CJI held that freedom of queer community to enter into unions is guaranteed under the Constitution. However, the majority comprising Justices S Ravindra Bhat, Hima Kohli and PS Narasimha did not agree with the CJI on the right of queer individuals to enter into a civil union.

At the same time, the CJI held that the Court cannot strike down or read down the provisions of the Special Marriage Act owing to "institutional limitations" as the same would fall within the domain of the Parliament and the Legislature.

In his judgment, the CJI also held that transgender persons in heterosexual relationships had the right to marry under the existing laws including personal laws. Further, he held that unmarried couples, including queer couples, could jointly adopt a child.

On The Same Sex Marriage Verdict

Answering questions on the recent verdict at the event, the Chief Justice said that the ruling has given emphasis to certain rights of same sex couples including the right to choose your own partner and the right to cohabit. He pointed out that there have only been 13 significant cases in Indian history where Chief Justices have been in a minority.

“In my judgment I have specifically said that there are certain values in a marital relationship which find an emanation in the fundamental constitutional values . I've emphasized the right of choice, the right to choose your own partner, the right to cohabit with a person of your choice and therefore the right to find someone with whom you want to live your life or to be a part of your own emotional, psychological and social being as a partner. So I do believe that in my judgment I have given vent to those basic aspirations of constitutional jurisprudence,” he said.

However, he said that it becomes difficult for the Court to intervene in the absence of a statutory regime, and in a system like India's where there is a separation of powers between the legislature, executive and the judiciary.

“The difficulty which judges face is, in the absence of a statutory regime, do courts have the authority, in a system where there is a separation of powers, to create an alternate statutory regime? So it's far easier for the courts to wield the power of judicial review when you're applying a piece of legislation which is discriminatory, as opposed to an appeal to the court to laying down an entirely new legislative regime”.

He said that if the state were to enact a law which specifically discriminates against marital choice or the choice of a person to marry outside their caste or religion, that would be amenable to judicial review. But in the absence of a statutory regime, the difficulty to intervene arises.

He pointed out that an argument raised in the same-sex marriage case was that the special Marriage Act, 1955 is discriminatory because it applies only to heterosexual couples. However, he was of the view that striking it down would cause more harm than good. 

“Now if the court were to strike down that legislation, the consequence would be that you would be going back to the position as it stood even before independence, where there was no legislation at all for people belonging to different faiths to get married. So striking down legislation, which is really the classical power of judicial review would not be adequate in itself. Because you would would be coming out with a prescription, which is worse than the disease itself. So what does a court do? Does a court have the power in a democracy to lay down new legislative mandates? That's where the difficulty really arises. Can the court in that sense fashion a new legislative ordering? or does that court then defer to the legislature?” he said.

“For judges, it's more within judicial review if you are confronted with a statute which can be brought within the fold of the anti-discrimination principle as opposed to a plea of fashioning an entirely a new legislative regime of rights. That's where really the core of the problem which Court's face arises,” he said.

“Can you create a new regime for succession? Can you create a new regime for tax? Can you create a new regime for social welfare benefits? Because these are not areas which stop merely at a declaration of a right but following a declaration of the right, the remedies which are sought are clearly within the province of the legislature” he added.

He said that when there is a discriminatory legislation, courts have a far wider scope for expanding their jurisdiction.

He cited the example of the judgment delivered by the Apex Court in March 2020 in Union of India Vs Ld. Cdr. Annie Nagaraja, where the Court held that serving women Short Service Commission Officers in Indian Navy were entitled to Permanent Commission at par with their male counterparts.

“For instance the exclusion of women from the armed forces from being granted permanent commissions. We found it much easier, because we struck down a provision of regulatory conduct which prevented women from joining the armed forces. We said that was clearly discriminatory and therefore you must allow women to enter into the Armed Forces,” he said.

In this context, he also highlighted the Supreme Court ruling of September 2022 in X vs Principal Secretary that declared that unmarried women were also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship.

“...we have a law in India which says that a woman can have a right of termination of pregnancy up to 20 weeks in certain circumstances and that's extendable to 24 weeks for married women. We struck down the distinction between unmarried and married women by saying that there's no rational distinction to distinguish between unmarried women who want to terminate their pregnancy and married women who are given the right to terminate pregnancy. So we extended effectively the period from 20 to 24 weeks by applying the common yard-stick to married as well as to unmarried women. So where you're in the realm of discrimination, the courts have a far wider scope for expanding their jurisdiction,” he added.

On The Role of Courts In A Fast Changing Society

The CJI said that Courts today are becoming areas where people come to give vent to their aspirations for social change. This includes areas of human rights, climate change, or social welfare. He also said that courts have a very vital role to play in steadying the ship when there is constant change in society.

“Looking at our cultural and social background, I do believe that courts today have become focal points of engagement between civil society and the quest for social transformation. People approach the courts not just for outcomes, but also for a voice in the process of constitutional change. I do believe that by giving a public platform for that voice for social change, courts in and of themselves are performing a very vital function“ he said.

In this regard, he said that the judiciary is a stabilising influence in an ever changing society.

“I believe that judges have a very vital role to play though we are not elected. Though we don't go back to the people every 5 years to seek their votes. But there's a reason for that and the reason for that is I do believe that the judiciaries are in that sense a stabilizing influence in the evolution of our societies,” he said. 

“..the Constitution had a clear vision, a vision which would mark the constitution not just as a political document but as a document which would witness a social transformation. Therefore to my mind, as judges it's our duty fundamentally to look at the histories of discrimination which our people have suffered and to use the Constitution as a peaceful means of bringing about a social transformation” he added.

He also opined that Courts needed to function as a platform for dialogue, since the process of constitutional deliberation is as important as the outcome of the case itself.

“In so many societies across the world you find that the rule of law has given way to the rule of violence. The key to a stable society is the ability of judges in that sense to use the Constitution and their own platform as a platform for dialogue, as a platform for reason, as a platform for deliberation. In so many cases that we decide, including the case that we have been speaking about, I think our outcomes are in themselves important but the process is itself as important as the outcome. Because in the process of constitutional deliberation that goes on in the court, you foster a new and emerging consensus. In that consensus which emerges through the process of judicial deliberation, we put out a hope for a better future for our societies” he said.

On Affirmative Action In India

Drawing a contrast between affirmative action in the United States and in India, the CJI said that unlike in the US, the Indian Constitution entrenches the principle of affirmative action. In terms of affirmative action, India continues to give a very strong support to affirmative action policies, he said.

He pointed out that often, the argument against affirmative action is that less meritorious people are being chosen. In this context, he underscored the significance of substantive equality rather than formal equality.

“What do you really mean by equality itself? Do you look at equality as a sense of formal equality? Or do you look at equality as something more fundamental? Because if you look at equality merely as formal equality, then by being blind to the histories of discrimination which our people have suffered, you're essentially giving weight to the social, cultural and economic capital which the privileged have acquired over generations. So in order to have a level playing field for those communities in our societies who've suffered from centuries of discrimination, affirmative action in that sense is not an exception to equality but is a reflection of the principle of substantive equality“ he said.

He also reflected on the meaning of ‘merit' in the context of affirmative action. 

“You have to redefine what you mean by merit itself. Does merit factor into account the social, cultural or economic advantages which the resourced in society have? or does merit in that sense have to be redefined to provide for a more inclusive society? If you define merit in terms of inclusion, namely the importance of allowing people who have suffered from histories of discrimination, to assume more important roles of decision-making responsibility in our societies, then you have the answer to your question. So it really depends on how you frame the question, if you frame the question in terms of formal equality, you'll have a different answer, if you frame the question in terms of substantive equality.. and I believe the latter is more correct” he said.

On The Retirement Age Of Judges

Speaking on the system of retirement of judges in India, as opposed to a system of lifetime appointment in the United States,  the Chief Justice that he believed in the in the importance of a prescribed age of retirement for judges. 

“..from a purely theoretical construct of constitutional law, I think it's important that we allow for succeeding generations of judges to assume the mantle of decision makers and therefore to correct us if we were wrong. I think that's a very powerful statement of the theoretical construct of our constitution, ” he said.

He also added that the Supreme Court being a polyvocal court, adds a degree of flexibility and makes room for correction of mistakes.

“We've been criticized very often as being a polyvocal court. We are 34 judges in our court and we sit in panels of two or three where we exercise appellate jurisdiction. We are a final court of appeal, but we sit in larger panels of five or seven or more, when we are deciding important constitutional questions. But I do believe the polyvocality of our court far from being a source of weakness, is a sense of strength to the institution of judicial review itself. Because it allows for greater flexibility. We of course follow principles of legal certainty when we say that benches of two are bound by co-equal benches unless you're overruled by a bench of three. But inbuilt in our system including namely an age of retirement, is the postulate that it's important that we must have a certain degree of flexibility for change which I believe judges who lay down office at a certain point of time leave for the future. Because we must allow make that allowance for the future to self-correct our own mistakes or perhaps look at a future society, “ he said.

The video of the event can be watched here :