Incoming CJI Justice DY Chandrachud: Legacy of crucial precedents

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The appointment of the 50th Chief Justice of India (CJI) Dr. Justice Dhananjaya Yeshwant Chandrachud, a a PhD from Harvard Law School and Supreme Court judge since 2016, will come into effect from November 9, 2022

Justice DY Chandrachud, who was a judge of the Bombay High Court before becoming Chief Justice of the Allahabad High Court in 2013, will serve as the Chief Justice of India for two years, starting November 8, 2022.

Before being elevated to the bench, Justice Chandrachud, whose father Justice Yeshwant Vishnu Chandrachud was the 16th CJI, worked as a lawyer in the Supreme Court and several High Courts.

During his service as a judge at the Supreme court of India since 2016, Justice Chandrachud, who has also served as India’s Additional Solicitor General from 1998 to 2000, has been part of several constitution benches and has tabled some notable opinions.

On Privacy & Autonomy:

In August 2017, a nine-judge bench of the top court, in Justice K.S. Puttaswamy (Retd) v Union of India and other connected matters, unanimously recognised privacy as a fundamental right guaranteed by the Constitution of India. In this judgment, the majority, speaking through Justice Chandrachud clearly settled that the Right to Privacy could be infringed only when where there was a compelling state interest for doing that. In this judgment, whereas Chandrachud, J. formulated the test of ‘legitimate state interest’, other two of the Judges, namely, Chelameswar and Sapre, JJ. used the test of ‘compelling state interest’ and not ‘legitimate state interest’.

The judgment in KS Puttaswamy later paved the way for decriminalisation of homosexuality in India. On September 6, 2018, a five-judge bench of the top court unanimously struck down Section 377 of the Indian Penal Code in Navtej Singh Johar v UOI and other connected matters to the extent that it penalised any consensual sexual relationship between consenting adults, be it homosexuals (man and a man or woman and a woman) or heterosexuals (man and woman). Justice Chandrachud, in his separate concurring opinion, called Section 377 IPC an anachronistic law, and wrote that “by penalising sexual conduct between consenting adults, Section 377 restrained the fundamental freedom of Indian citizens belonging to sexual minorities under an antiquated and anachronistic colonial-era law – forcing them to live in hiding, in fear, and as second-class citizens”.

Against the majority constitution bench's decision in Justice K.S. Puttaswamy (Retd) v Union of India which upheld the Aadhaar Act in 2018, Justice Chandrachud, in his dissenting opinion, raised questions on the independence and accountability of the UIDAI. He aslo observed that "the entire Aadhaar programme, since 2009, suffered from constitutional infirmities and violations of fundamental rights". With his opinion in the case, Justice Chandrachud raised some debatable points about parliamentary process.

Thereafter, again in 2021, in Aadhaar Review case- Beghar Foundation v Justice K.S. Puttuswamy (Retd), while the five-judge bench in a 4:1 judgment dismissed a set of review petitions challenging the Court’s 2018 Aadhaar judgment where the Court upheld the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, Justice Chandrachud dissented.

On "Adultery"

In another landmark decision- Joseph Shine v Union of India that decriminalized adultery in India on 27 September 2018, Justice Chandrachud concurred with the majority opinion that struck down Section 497 of the Indian Penal Code, 1860 (IPC) on the grounds that it violated Articles 14, 15 and 21 of the Constitution. “The notion that a woman is ‘submissive’, or worse still ‘naïve’ has no legitimacy in the discourse of a liberal constitution. It is deeply offensive to equality and destructive of the dignity of the woman. On this stereotype, Section 497 criminalizes only the accused man,” Chandrachud J. penned while handing down his opinion.

On exclusion of menstruating women from Sabarimala temple

In the Sabarimala temple entry case having case title Indian Young Lawyers’ Association and Ors. v State of Kerala and Ors., on September 28, 2018, the top court delivered its verdict by 4:1 majority and struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act that allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on custom. In his opinion, Chandrachud J. declared, “A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality”.

On Electoral politics

In 2017, while dealing with a reference to a Bench of seven Judges relating to the interpretation of Section 123(3) of the Representation of the People Act, 1951, Justice Chandrachud delivered the dissenting opinion. In Abhiram Singh v C.D. Commachen, where the majority decision held that electoral candidates cannot seek votes on the grounds of religion, race, caste, community or language 'of their own and of the voters', Justice Chandrachud wrote, “The legislature introduced the expression 'his' with a purpose. A change in the law would have to be brought about by a parliamentary amendment stating in clear terms that ‘his’ religion would also include the religion of a voter. In the absence of such an amendment, the expression ‘his’ in Section 123(3) cannot refer to the religion, race, caste, community or language of the voter”.

On Unitary Vs. Federal Structures 

In the Special Status of Delhi case that held that the Lieutenant Governor (LG) is not the executive head of Delhi, Justice Chandrachud, in his concurring opinion held that “there is no independent authority vested in LG to take decisions in the matters where the Delhi Assembly has to the power to make laws”. The decision in Government of NCT of Delhi v Union of India was aimed to address the legal controversy on the status of the NCT (National Capital Territory) and end the tussle between the Chief Minister of Delhi, and LG.

Ram Janmabhoomi, Abortion Rights et al.

Apart from these judgments, Justice Chandrachud has also penned some path-breaking judgments including the Ayodhya land title dispute, unmarried women's right to abortion, permanent commission to women officers, and 'living will' by terminally ill patients for passive euthanasia.

In X vs. The Principal Secretary Health and Family Welfare Department Govt. of NCT of Delhi and Anr, Justice Chandrachud authored the judgment on behalf of himself and Justices Bopanna and Pardiwala and held that even unmarried women are eligible to seek termination of pregnancy of 20-24 weeks, from a consensual relationship. 

Interestingly, while dealing with the 51-year-old abortion law that barred unmarried women from terminating pregnancies which are up to 24-weeks old, Justice Chandrachud remarked upon the unmarried woman's choice to bear a child. He wrote, "The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman."

On inter-faith marriages

In another significant judgment in Shafin Jahan v Ashokan K.M. case, where one Hadiya Jahan (originally Akhila Ashokan) converted to Islam and married a Muslim man and the Kerala High Court used Article 226 to annul the marriage, Justice Chandrachud gave his concurring opinion, which set aside the high court order, and wrote, "Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice".

Since his elevation to the bench, Justice Chandrachud has been part of several landmark judgments and has penned down his opinions in cases that involved constitutional and administrative law, gender justice, religious and linguistic minority rights, and labour and industrial laws.

Justice Chandrachud's verdicts have strengthened his reputation of non-conformism. His appointment as the CJI is already a focus of more than usual interest. His legacy of judicial precedents which often adopt a progressive liberal style will be important for crucial events in the future, where his past work will be at the helm of affairs at the Supreme Court.