STATE TIMES NEWS
New Delhi: Chief Justice of India D Y Chandrachud has said judges, though not elected, have a very vital role to play because the judiciary has a “stabilising influence” in the evolution of societies which are rapidly changing with technology.
He was responding to the most common criticism that unelected judges should not venture into executive’s domain. He made the observations while speaking in the 3rd Comparative Constitutional Law discussion co-hosted by the Georgetown University Law Center, Washington and the Society for Democratic Rights (SDR), New Delhi on the topic – ‘Perspectives from the Supreme Courts of India and the United States’.
“I believe that judges have a very vital role to play though we are not elected. We don’t go back to the people every five years to seek their votes. But, there’s a reason for that… I do believe that the judiciary, in that sense, is a stabilising influence in the evolution of our societies, particularly in something like our age which is so rapidly changing with technology,” the CJI said.
The judges are the voice of something which must subsist beyond “the vicissitudes of time” and the courts have the ability to provide stabilising influence in the societies.
“I do believe that we have a role to play in the overall stability of our own civilizations, our own cultures, particularly in the context of a plural society, such as India,” he said. As part of a cultural and social background, the CJI said that the courts have become focal points of engagement between civil society and the quest for social transformation.
“So, people approach the courts, not just for outcomes. Let’s be very clear, people approach the courts also for a voice in the process of constitutional change…,” he said.
This is a complex question and there are several reasons as to why people come to courts more often, he said.
“It is very important for courts… because we are as many institutions of governance… of course there is the principle of the separation of powers. We don’t take upon ourselves the role of the legislature or we don’t take upon ourselves the role of the executive,” he said.
The courts are becoming places where people come in order to give vent to the expression for the society which they aspire to achieve, he said.
Chief Justice of India D Y Chandrachud has defended his minority verdict on some aspects pertaining to same-sex marriages and said he stood by it as the judicial opinions are sometimes a “vote of conscience and a vote of the Constitution”.
On October 17, a five-judge Constitution bench headed by the CJI unanimously refused to accord legal recognition to same-sex marriage, saying there was “no unqualified right” to marriage.
However, the CJI and Justice S K Kaul were in minority on the issues of right to form civil union and right of adoption of queer couples.
Speaking candidly at the 3rd Comparative Constitutional Law discussion co-hosted by the Georgetown University Law Center, Washington and the Society for Democratic Rights (SDR), New Delhi about him being in minority in the same-sex marriage judgements, the CJI said, “I do believe it (judgement) is sometimes a vote of conscience and a vote of the Constitution and I stand by what I said.”
He said the CJIs have been in minority on rare occasions.
“But there are 13 significant cases in our history where the Chief Justice has been in a minority. And, I do believe, sometimes it is a vote of conscience and a vote of the Constitution and I stand by what I said,” he said.
“Therefore, we said that, well, it’s time for Parliament to act. Apart from that, that’s where I got into a minority. I said, though we cannot therefore entrench into the domain of Parliament. Nonetheless, there were sufficient foundation principles in our Constitution, to allow for recognition of same sex unions in terms of civil unions,” he elaborated.
“Three of my colleagues, another colleague joined me in this, but three of my colleagues felt that to recognise a right of forming unions was again beyond the judicial domain, and that it must be left to Parliament,” the CJI said.
On the fundamental issue as to whether same sex couples should have the right to form binding unions and cohabit traditional relationships, three of my colleagues, though they recognised that they do have the right, he said, “we cannot elevate this to a constitutional right.”
“The other area in which I was in a minority was whether same sex couples have the right to adopt… I said that well, same sex couples, queer couples have the right to adopt a child because under Indian law, a single individual can adopt a child, a woman can adopt a child. So, I said if they are together, there is no reason to deny them the right to adopt the child merely because they are in a queer relationship,” he said.
“So on the broader aspect, there was a unanimity, but on the right to form unions and adoptions, I was in a minority of two as against three of my colleagues,” the CJI said.