‘A vote of conscience’: CJI on his verdict in same-sex marriage at US university

Responding to a question on what led him to arrive at his decision, the CJI said that the basis for a judge’s decision should not be to give effect to social majority but instead to “constitutional morality” which is grounded in the constitutional values of liberty, equality, fraternity, the right to freedom of speech and expression and the “unique oneness of our civilisation”, among others.

Elaborating on the minority opinion in the five-judge bench ruling, he said there are many foundational constitutional principles which allow for same-sex unions in terms of civil unions such as the right(s) to association, life and liberty, free speech and expression; and conscience.

On the lack of agreement between the bench on key issues like recognising civil unions, he said, “Three of my colleagues recognised the right but said that we cannot elevate this to a constitutional right”, while adding that the majority deemed it best to leave its recognition to the Parliament.

Similarly, he said that he was in the minority by upholding the right of non-heterosexual couples to adopt and said, “In India, an individual man and woman can adopt but same-sex couples cannot adopt jointly. Why should queer couples be deprived of such a right just because they are in a relationship?

“We couldn’t by judicial fiat enter into a very complex area which wasn’t just confined to marriage but went into other areas like adoption, inheritance, succession, tax, etc. Therefore, we said it is for the Parliament to act,” the CJI said.