If all decisions of government are democratic, then why have courts? CJI DY Chandrachud in same-sex marriage case

Democracy cannot be viewed through a narrow prism of electoral mandates alone and if all the decisions of elected wings like the parliament and the executive are considered democratic, then fundamental rights and courts will serve no purpose, Chief Justice of India DY Chandrachud said in his judgment in the same-sex marriage case. .Chief Justice DY Chandrachud disagreed with the Central government's stance that courts cannot examine issues concerning the rights of LGBTQ+ couples as it would be anti-democratic."If all decisions of the elected wing of the State are considered to be democratic decisions purely because of the manner in which it is vested with power, what then, is the purpose of the fundamental rights and the purpose of vesting this Court with the power of judicial review? Framing the argument on the legitimacy of the decisions of this Court purely in terms of electoral democracy ignores the Constitution itself and the values it seeks to engender," his judgment said.The Constitution does not envisage such a procedural form of democracy, he added in his minority opinion.The CJI proceeded to reject the proposition by the Central government that an exercise of powers of judicial review by the apex court would constrain the right of citizens to participate in political processes."The Constitution does not confine the universe of a constitutional democracy to an electoral democracy. Other institutions of governance have critical roles and functions in enhancing the values of constitutional democracy. The Constitution does not envisage a narrow and procedural form of democracy," the CJI said..The CJI also termed the Central government's stance on this aspect a narrow view of democracy. "This is a narrow definition of democracy, where democracy is viewed through electoral mandates and not in constitutional terms. Additionally, it overlooks the importance of a Constitution which prescribes underlying values and rules of governance for the sustenance of a democratic regime," he opined..To elaborate, the CJI pointed out that it was through court intervention that the right to education was deemed a fundamental right. However, he opined that such intervention is not possible in the same-sex marriage case as the Constitution does not recognise a right to marriage. "The right to education was held to be a fundamental right, not because of any statute or law but because of its centrality to the values that the Constitution espouses. The arguments of the petitioners that the Constitution recognises a right to marry is hinged on the meaning accorded to marriage by statutes, which cannot be accepted," he said..On Tuesday, the Indian Supreme Court ruled against giving legal recognition to same-sex marriages or marriages involving queer couples, or even conferring such unions the status of a civil partnership..All five judges on a Constitution bench including the CJI unanimously opined that it was up to the legislature to take a call on giving legal recognition to marriages between same-sex partners.The Court further unanimously turned down a challenge to provisions of the Special Marriage Act to the extent it exclude queer couples.However, CJI Chandrachud and Justice Sanjay Kishan Kaul opined that relationships between queer persons should be recognised as civil partnerships. The two judges further opined that the current laws excluding unmarried couples including queer couples from adopting children are liable to be set aside.However, the other three judges, who were in majority, disagreed on these aspects too. .Notably, CJI Chandrachud in his minority judgment also rejected arguments that unions between LGBTQ+ individuals were not "Indian."All sexual and gender minorities are just as Indian as fellow citizens who are heterosexual or cisgender, he said."A thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practised by Indian citizens. Something which is Indian could be present from time immemorial or it could be a recent development. Regardless, this is not a game of numbers. The constitutional guarantee certainly does not fade based on the level of acceptability that a particular practice has achieved. Sexual and gender minorities are as Indian as their fellow citizens who are cisgender and heterosexual," his opinion stated..The Chief Justice added that the failure of the State to recognize the entitlements that flow from a legalized marriage would result in a “disparate impact on queer couples who cannot marry under the current legal legal regime.".Follow detailed coverage of the judgment here..[Read Judgment].WATCH| Highlights of the minority and majority verdict in the marriage equality case: