Outcome never personal to judge, no regrets, says CJI on same-sex marriage verdict; refuses to comment on Article 370

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The verdict

“I leave it for the future of our society to judge which course to take,” he said.

On 17 October, a five-judge Constitution bench of the Supreme Court refused to grant legal recognition to same-sex marriage but pitched for equal rights to queer people.

All judges were unanimous in holding that it was within Parliament’s ambit to change the law for validating such union but, in a minority view, CJI Chandrachud and Justice SK Kaul, who recently demitted office, recognised the right of same-sex couples to enter into civil unions.

“One thing which our training teaches us is that once you deliver a judgement in a case, you kind of distance yourself from the outcome. Outcomes are never, in that sense, something which is personal to a judge. You decide a case based on your vision of the Constitution, on what you believe the vision of a just society for the future is, in constitutional terms, which is what I have done,” CJI Chandrachud said.

“I never have any regrets. Yes, I have been in the majority in many cases and I have been in the minority in many cases. But the important part about the life of a judge is never to associate yourself with a cause. Because it is only when you don’t associate yourself with a cause after a judgement has been delivered that you can truly be dispassionate,” he said.

‘Leave it for the future of our society to judge’

“Having decided a case, I leave it at that. And I leave it for the future of our society to judge what course the society should take,” CJI Chandrachud said on being asked if he has any regrets about delivering the judgement.

CJI said he would not comment on the merits of the verdict.

“The LGBTQ community has fought a long and hard battle in the realisation of their rights. To a certain extent, there was a watershed in that evolution when the Supreme Court decided Navtej Johar (decriminalisation of consensual gay sex). The recent judgement was a judgement where the LGBTQ community sought recognition of the right to marry. I am not going to comment on the merits of the judgement,” he said.

Justice SK Kaul, who was part of the top court bench on same-sex marriage issues and recently demitted office, told PTI last week that the case was not strictly legal in nature and involved social issues, and the government may introduce a law in future to grant them matrimonial rights.

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‘Society can always make their opinion’

The CJI said the judges speak their mind through their judgement which becomes public property after the pronouncement and people in a free society can always make their opinion about it.

“So far as we are concerned we decide according to the Constitution and the law. I don’t think it will be appropriate for me either to respond to the criticism or mount a defence to my judgement. What we have said in my judgement is reflected in the reason present in the signed judgement and I must leave it at that,” Justice Chandrachud said.

The response came to a query seeking his views on recent criticism by some jurists, including a former judge, on the Article 370 verdict, which upheld the Centre’s 5 August, 2019 decision to abrogate the provision bestowing special status on the erstwhile state of Jammu and Kashmir.

On 11 December, the top court, while upholding the scrapping of Article 370, ordered the restoration of statehood “at the earliest” and set a 30 September, 2024 deadline for holding the Assembly elections in the present union territory of Jammu and Kashmir.

Settling the decades-long debate over the vexed constitutional provision, the five-judge Constitution bench headed by Chandrachud delivered three concurring judgements upholding the abrogation of Article 370 that provided a unique status to Jammu and Kashmir when it acceded to the Union of India in 1947.

Once delivered judgement becomes public property

CJI Chandrachud said, “Judges who decide a case speak through their Judgement. Once a Judgement is delivered that judgement becomes a public property of the nation. Until a judgement is delivered the process is confined to the judges who are involved in the decision of that case. Once we arrive at a decision and the judgement is pronounced it’s public property. It’s a property of the nation. We are a free society.”

“We have a Constitution which protects the right to the freedom of speech and expression. And therefore people are entitled to exercise their right to freedom of speech and expression. To critique, to criticise, to appreciate,” he said.

Writing the judgement for himself and Justices BR Gavai and Surya Kant, CJI Chandrachud had ruled that Article 370 was a temporary provision and the President of India was empowered to revoke it in the absence of the Constituent Assembly of the erstwhile state whose term expired in 1957.

“Article 370 of the Constitution read together with Article 1 leaves no manner of doubt that the integration of Jammu and Kashmir as a part of the nation, which in itself was a Union of States, was complete. Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary,” the court had held.

Justices Sanjay Kishan Kaul (now retired) and Sanjiv Khanna, who were part of the five-judge bench, had penned separate but concurring verdicts on the issue.

The apex court had also upheld the validity of the union government’s decision to carve out the union territory of Ladakh from the erstwhile state of Jammu and Kashmir.

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