‘A Vote Of Conscience’: CJI Chandrachud Explains His Minority Verdict On Same-Sex Marriage At US Varsity

Chief Justice of India (CJI) DY Chandrachud has called his minority verdict on same-sex marriage a ‘vote of conscience’, adding that he stands by everything he said in the Supreme Court. According to Bar and Bench, the CJI noted that he was part of a minority verdict to allow queer people to marry and adopt kids while three judges of the bench differed from him and rule otherwise. He said that the instances of the CJI being in minority judgment were very few and on only 13 occasions, such a rare phenomenon has taken place.

He was speaking at the 3rd Comparative Constitutional Law discussion co-hosted by Georgetown University Law Center, Washington DC and Society for Democratic Rights (SDR), New Delhi. The topic of discussion was ‘Perspectives from the Supreme Courts of India and the United States’.

“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 was quoted as saying by The Indian Express.

Social Majority Vs Constitutional Morality
The CJI invoked the angle of constitutional morality while explaining the reasons for arriving at his verdict. He said a judge’s decision should not be based on the social majority but on constitutional morality. He said that many foundational constitutional principles favoured same-sex unions in terms of civil unions, which also include the rights to association, life and liberty, free speech and expression.

He noted that the other three judges also recognised the right but refused to elevate it to a constitutional right. Notably, the CJI had allowed same-sex couples to marry and adopt children as well, however, there of the five judges ruled against it.

Explaining why the apex court didn’t allow same-sex marriage, he said they couldn’t enter a very complex area that wasn’t confined to marriage but delved deeper into issues like adoption, inheritance, succession and tax.

“Therefore, we said it is for the Parliament to act,” the CJI said, adding “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 five-judge constitution bench had pronounced its verdict this month after hearing arguments for ten days continuously in April-May this year.