NEW DELHI: Chief Justice of India D Y Chandrachud has said that fashioning entirely a "new legislative regime" to allow same-sex marriages falls under the domain of Parliament and striking down provisions of the Special Marriage Act for it would have amounted to coming out with a prescription "worse than the disease itself".
Justice Chandrachud, who is in the US, referred to the Special Marriage Act and said it was a secular law to deal with the marriage of heterosexuals belonging from different religions and holding some of its provisions for not allowing same-sex marriages would not have been the perfect thing.
"It was argued that the Special Marriage Act is discriminatory because it applies only to heterosexual couples. Now, if the Court were to strike down that legislation, the consequence would be as I said, in my judgment, it would amount to going back to the position it obtained even before independence, which was that there was no legislation at all for people belonging to different faiths to get married.
"So striking down the legislation. would not be adequate and would have been like coming out with a prescription which is worse than the disease itself," the CJI said on Monday.
So one of the key questions was, does the court have the jurisdiction to essentially get into this domain and to mandate that there is a right to marry under the Indian Constitution, the CJI said.
"By a 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.
But legislating on the right to marry is something that falls within the domain of Parliament, and we couldn't by judicial decisions, lay down the law and venture into a very complex area that is not just confined to marriage, but which goes into other areas like marriage adoption, succession, inheritance tax," he said.
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 the minority on the issues of the right to form civil unions and the right to adoption of queer couples.
The CJI spoke candidly about him being in the minority in the same-sex marriage judgements rendered by four judges of the Constitution bench. He said the CJIs have been in the 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," the CJI 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.
"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 and queer couples have the right to adopt a child because, under Indian law, a single individual can adopt a child, and 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.