You Cannot Look To Courts To Resolve Every Issue In Society, Important To Draw The Line: CJI Chandrachud On Same-Sex Marriage Judgment Being Called 'Infamous' At Oxford Union
Chief Justice Dr DY Chandrachud recently said that one cannot look to the courts to resolve every issue of dispute that may arise in society as it is important to draw the line and decide what legitimately falls under the Court's jurisdiction and what belongs to other wings of the society.
“You cannot look to the courts to resolve every issue of dispute that may arise in society. It is important as judges that we draw the line and decide what legitimately belongs to our jurisdiction and what legitimately belongs to other wings of society including Civil Society itself.”, he said.
At the Q&A Session organised by Oxford Union, he was also asked about the "political pressure on the judiciary, particularly in the past few years."
In response, the CJI said, "Political pressure, if you ask me in the sense of pressure from the government, I would tell you that in the 24 years I have been a judge, I have never faced a sense of political pressure from the powers that be."
He added, "If you mean "political pressure" in a broader sense of a judge realising the impact of a decision which may have political ramifications, obviously, judges have to be conversant of the impact of their decisions on the polity at large when you are deciding constitutional cases. That is not political pressure I believe. That is an understanding by the Court of the likely impact of the decision, which the judge must necessarily factor in in their consideration."
On the same-sex marriage judgment of the Apex Court, the Interviewer asked, "You bring up the important aspect of the separation of powers and the roles of the Legislature versus the Judiciary. Of course, applying this to a very infamous recent ruling, the ruling on the Special Marriage Act last year, your justification for delegating the legislation of same-sex marriage to the legislature, was that in your own words, the Judiciary cannot Legislate. Do you believe that this principle is compatible with the judiciary's duty to humanize the law?"
CJI responded, “It is the duty of the Judiciary to humanize the law. But equally, when you humanize the law, you cannot disregard the law unless you strike down the law. In a country like India, which is governed by a constitutional principle of judicial review, the court has not merely the duty to interpret the law, but the authority in a given case to even strike down the law.”
On being called the judgment ‘very infamous’, the CJI responded, "You call the Judgment in the Special Marriage Act case infamous. But I will just share with you what the real issue was and I am not here to defend a judgment because as a judge, I believe that when you deliver a judgment it becomes the property of not just the nation but global humanity. Therefore, it is for others to critique the Judgment".
He also said, “So what we felt was that nobody wanted the law to be challenged because if the law was struck down you'd be in a situation where there would be no governing principle allowing for couples of different faiths to get married, which the Special Marriage Act does. So here you have a law which specifically uses the words ‘man’ and ‘woman’. Can the court then override the provisions of that law and read that as ‘man and man’ or ‘woman and woman’. We said we can't do it now.”
Further, he said that the Special Marriage Act was a law which was enacted by the Parliament and the purpose of the law was to allow for couples belonging to different religious faiths to enter into marriage.
He highlighted that the law used the expressions ‘man’ and ‘woman’, so the law was very clear it contemplated a marriage in a heterosexual relationship.
Another aspect which he emphasized was that the entire gamut or the domain of marriage is governed by legislation in India, therefore, they entrusted Parliament to do so.
“I must also share with you that I was in a minority in that case on a certain specific aspect because I believed that the court should recognize at least the right to form civil unions for same-sex couples until such time as Parliament stepped in and legislated on the subject.”, he said.
He continued, “Three of my colleagues didn't agree with us. They felt that even the recognition of same-sex unions was beyond the purview of the court. What happens in courts in modern democracies is not only to be looked at in terms of the substantive outcomes of a case. The court is involved in a continuous process of dialogue, a dialogue not only with the litigating parties but a dialogue with wider civil society and that's one of the reasons why we have now decided to Livestream our important constitutional cases because as Chief Justice of India, it has been my very firm conviction that we need to take the process of justicing and the administration of law to the homes and hearts of people.”
He said that he believed that when homosexuality was decriminalized in Navtej Singh Johar & Ors. v. Union of India (2018 SC), there was a wider societal acceptance of these relationships and, there is so much which has to be done by Society itself and by other wings in a modern democracy. He then added the people cannot look to the courts to resolve every issue.
It was further asked whether the Chief Justice believed that without the cooperation of the legislature and greater Civil Society, the law could not be humanized.
While answering a question, the CJI referred to the powers under Article 32 and Article 226 of the Constitution and said that the reformation of law does not necessarily always fall in the domain of the Court. "..the reformation of law does not necessarily always fall in the domain of the court and that's something which we need to accept. Very often, there may be certain areas of the reformation of the law where legislative bodies have to intervene, and that is the point which we made in the same-sex marriage equality case", the CJI said.
He also said that the Legislature has performed a very valuable role in humanizing the law and the legislatures across jurisdictions and civilizations have attempted to humanize the law.
