“Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril”.
Justice Dr. D.Y. Chandrachud in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
Expectations are riding high as Justice UU Lalit has passed the baton to Justice Dr. D.Y. Chandrachud, who now takes over as the 50th Chief Justice of India. Admitting that he has rather big shoes to fill, after his predecessor’s successful tenure, Justice Dr. Chandrachud has the benefit of time by his side, as he will be at the helm for approximately 2 years.
In order to understand this anticipation for Justice Dr Chandrachud’s tenure as CJI, it is very pertinent to take a look at his life and his career so far.
Early Life and Advocacy
Justice Dr. Dhananjaya Yeshwant Chandrachud was born on 11-11-1959 to former Chief Justice of India, Justice Y.V. Chandrachud and Prabha Chandrachud. He did his graduation from St. Stephens College in Delhi with a degree in economics and mathematics in 1979, before obtaining a degree in Law from the Faculty of Law at Delhi University in 1982. He completed his LL.M from Harvard University in 1983 after obtaining the ‘Inlaks’ scholarship. He stayed at Harvard until 1986 to complete his Doctorate in Juridical Sciences. He also received the Joseph H. Beale prize for securing the highest marks in the Conflict of Laws course1.
On completing his studies, he enrolled as an advocate with the Bar Council of Maharashtra. He practiced law at the Bombay High Court and Supreme Court of India. He was designated as Senior Advocate by the Bombay High Court in June 1998 and in the same year was appointed as the Additional Solicitor General of India. He appeared in several important cases involving Rights of Bonded Women Workers, Rights of HIV Positive Workers, Contract Labour and Rights of Religious and Linguistic Minorities.2
Journey to becoming Supreme Court Judge
*A Circle of Life! Justice Dr. Chandrachud’s father, Justice Y.V. Chandrachud was the longest serving Chief Justice of India3
On 29-03-2000, Justice Dr. Chandrachud was appointed as Additional Judge of the Bombay High Court. On 31-10-2013, he took oath as the Chief Justice of the Allahabad High Court until he was appointed as a Judge of the Supreme Court on 13-05-2016.4
On 17-10-2022, President Droupadi Murmu appointed Justice Dr. DY Chandrachud to be the 50th Chief Justice of India with effect from 09-11-2022. Justice Chandrachud will serve as the Chief Justice of India for a period of 2 years starting from today till November 2024.
Recent and Notable Judgments that Justice Dr. D.Y. Chandrachud has been a part of
*Did You Know That? Justice Dr. D.Y. Chandrachud has authored almost 500 judgments so far!5
Justice Dr. Chandrachud’s time in the Supreme Court has been full of one landmark case after the other. His progressive stance regarding issues of privacy, women’s rights, freedom of speech and other constitutional aspects, have played a major role in generating a discourse around these issues on a larger scale. The list of his significant opinions and decisions is endless, but we have curated some very important ones, which are as follows-
Patriarchal & sexist to assume that a sexually active woman cannot be raped; Anyone conducting ‘two-finger’ test will be guilty of misconduct
In this unfortunate case of State of Jharkhand v. Shailendra Kumar Rai, 2022 SCC OnLine SC 1494, where a sexual assault survivor was subjected to “twin-finger” test by the Medical Board, the bench of Dr. DY Chandrachud* and Hima Kohli, JJ., held that the “two-finger test” or pre vaginum test must not be conducted as it has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted and is an affront to their dignity.
Unmarried Woman’s Right to Abortion | Marital Rape as a form of Sexual Assault
In a historic decision rendered in X v. Health and Family Welfare Department, 2022 SCC OnLine SC 905, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and AS Bopanna, JJ., gave a progressive ruling by holding that a woman cannot be denied the right to a safe abortion only on the ground of her being unmarried.
“Denying an unmarried woman, the right to a safe abortion violates her personal autonomy and freedom.”
In another landmark verdict given in X v. Health and Family Welfare Department, 2022 SCC OnLine SC 1321, the Bench of Dr. DY Chandrachud*, AS Bopanna and JB Pardiwala, JJ held that “Sexual assault” or “rape” under Medical Termination of Pregnancy laws includes “marital rape”. The Supreme Court took over two months to write this historic verdict touching upon various aspects like purposive interpretation of Medical Termination of Pregnancy laws, equal status of married and unmarried or single women, right to reproductive autonomy, right to dignity, effect of unwanted pregnancy on mental health of women, etc.
LGBTQIA+ Rights | Inclusion of Queer Relationships in the definition of “Family” | Definition of “Woman”
In the landmark 5 -Judge Bench decision in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, which became instrumental in upholding the rights of the LGBTQIA+ community, Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults . The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 . In his concurring opinion, Dr. D.Y. Chandrachud, J. , while stating that, “It is difficult to right the wrongs of history. But we can certainly set the course for the Future”, held that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution.
In another historic decision recently rendered in X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 1321 , , the Bench of Dr. DY Chandrachud*, AS Bopanna and JB Pardiwala, JJ., used the term “woman ” in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies.
Further on in Deepika Singh v. Central Administrative Services, 2022 SCC OnLine SC 1088, a case relating to maternity leave benefit to a woman not fitting in the popular imagination of a family, the bench of Dr DY Chandrachud* and AS Bopanna, JJ has observed that “familial relationships may take the form of domestic, unmarried partnerships or queer relationships.”
The Court was of the opinion that the predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children, ignores the fact that many circumstances lead to a change in one’s familial structure, and that many families do not conform to this expectation to begin with.
“A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination.”
Right to Privacy
Justice Chandrachud was part of the 9 Judge Bench in K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1, which unanimously held that, Right to Privacy is a basic fundamental right . The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that Right to Privacy forms an intrinsic part of Art. 21 and freedoms guaranteed in Pt. III. It permeates core of Preambular philosophy underlying “liberty” and “dignity” as also human concepts of “life” and “personal liberty” enshrined in Art. 21 and wide- ranging freedoms guaranteed under Pt. III, considered essential for a meaningful human existence.
Dr. Chandrachud, J., writing for himself and on behalf of J.S. Khehar, CJ, R.K. Agrawal and S.A. Nazeer, JJ, said that Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. He added, “While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being”.
* Did you Know? The “Privacy Case” also marked a unique moment in judicial history of India; as Justice Dr. Chandrachud overruled the ADM Jabalpur decision in which his father, Late Justice Y.V. Chandrachud, was part of the majority. Terming the judgments rendered by the majority as “seriously flawed”, Dr. D.Y. Chandrachud, J., observed that-
“H.R. Khanna, J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend”.
Women’s Rights | Empowerment and Employment
In major win for women Officers in Indian Army , the Division Bench of Dr. D.Y. Chandrachud and M.R. Shah, JJ., in Nitisha v. Union of India, 2021 SCC OnLine SC 261, held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational. The Court hence directed that such requirement shall not be enforced while implementing the decision in Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469
“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces, when the true picture of their service conditions tells a different story. A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic.”
In a major verdict rendered in Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469, the bench of Dr. D.Y. Chandrachud and Ajay Rastogi, JJ., ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.
The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. D.Y. Chandrachud, JJ., Shafin Jahan v. Asokan K.M, (2018) 16 SCC 368, termed the instant case to be perfect example of, “ patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel ” and set aside the verdict of Kerala High Court wherein it had annulled the marriage between two consenting adults, namely, Hadiya and Shafin Jahan. Noting that the Kerala HC erred in its decision, Dr. D.Y. Chandrachud, J., in his concurring opinion, came down heavily upon the Kerala HC, stating that,
“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a “just” way of life or “correct” course of living for Hadiya. She has absolute autonomy over her person. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226. The High Court has entered into a domain which is alien to its jurisdiction in a habeas corpus petition. How Hadiya chooses to lead her life is entirely a matter of her choice”.
In Mahendra K.C. v. State of Karnataka, (2022) 2 SCC 129, where the Single Judge of Karnataka High Court had termed person committing suicide a ‘weakling’ and also made observations on how the behavior of the deceased before he committed suicide was not that of a person who is depressed and suffering from mental health issues, the bench of Dr. D.Y. Chandrachud* and B.V. Nagarathna, JJ., held that such observations describing the manner in which a depressed person ought to have behaved deeply diminishes the gravity of mental health issues and that “The mental health of a person cannot be compressed into a one size fits all approach.”
“Individual personality differences manifest as a variation in the behavior of people. Therefore, how an individual copes with a threat- both physical and emotional, expressing (or refraining to express) love, loss, sorrow and happiness, varies greatly in view of the multi-faceted nature of the human mind and emotions.”
Discourse Generating Decision regarding Adultery
The 5-Judge Constitution Bench in Joseph Shine v. Union of India, (2019) 3 SCC 39, held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Referring to several foreign courts’ judgments and opinions of celebrated authors, Dr. Chandrachud, J. observed that-
“If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. Section 497 is founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Arbitrariness is writ large on the provision”.
Fundamental Rights | Liberty | Right to Life and Right to Die | Euthanasia
In Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, case where the Bombay High Court failed to evaluate even prima facie of the most basic issue, thereby refusing bail to the accused, the bench of Dr. D.Y. Chandrachud and Indira Banerjee, JJ., reminded the High Courts and District Courts of their duty to ensure human liberty. Justice Dr. D.Y. Chandrachud, observed that, “Law should not become a ruse for targeted harassment”.
“Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting”.
The 5-judge Constitution Bench of Dipak Misra, CJ., and AK Sikri, AM Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., in Common Cause v. Union of India, (2018) 5 SCC 1, held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab , (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. In his concurring opinion, Dr. Chandrachud, J., observed that,
“While upholding the legality of passive euthanasia (voluntary and non-voluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function”.
Live Streaming | Cases of constitutional and national importance to be live streamed
A Bench comprising of CJ Dipak Misra and A.M. Khanwilkar* and Dr D.Y. Chandrachud, JJ., in Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639 , decided in favour of live streaming of cases of constitutional or national importance before a Constitution Bench of the Supreme Court. Justice Khanwilkar delivered the leading judgment for the CJI and himself. While Justice Dr. Chandrachud rendered a separate concurring opinion wherein, he formulated Model guidelines for the broadcasting of the proceedings and other judicial events of the Supreme Court of India
[Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1
Seeking a review of the decision delivered by the Constitution Bench of the Supreme Court in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1 , the 5 Judge Bench of the Court comprising of A.M. Khanwilkar, Dr. D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., with a ratio of 4:1 dismissed this petition, while observing that, change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review.
However, Justice Dr. D.Y. Chandrachud gave his dissenting opinion on the issue and observed that constitutional principles of consistency and rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.
“It is important to draw a distinction with a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently”.
[K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1
The 5- Judge Bench comprising of CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., by a majority of 4:1, upheld the constitutional validity of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. Justice Chandrachud gave a 23-point conclusion to the opinion wherein he dissented from the majority. In his opinion, the entire Aadhaar programme, since 2009, suffers from the constitutional infirmities and violations of fundamental rights-
“Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhar scheme which severely impairs informational self-determination, individual privacy, dignity and autonomy”.
In a sharp criticism on passing of the Aaadhar Act as Money Bill within the meaning of Art.110 of the Constitution, Dr. Chandrachud, J., observed that-
“There is a constitutional trust which attaches to the empowerment of the Speaker of the Lok Sabha to decide whether a legislative measure is a Money Bill. Entrustment of the authority to decide is founded on the expectation that the Speaker of the Lok Sabha will not dilute the existence of a coordinate institution in a bicameral legislature. A constitutional trust has been vested in the office of the Speaker of the Lok Sabha. By declaring an ordinary Bill to be a Money Bill, the Speaker limits the role of the Rajya Sabha. This power cannot be unbridled or bereft of judicial scrutiny”.
[Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629
In a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voters. Writing the dissenting opinion for himself and Adarsh K. Goel and U.U. Lalit, JJ.; Dr. D.Y. Chandrachud, J., made a very significant observation in his dissent-
“Our Constitution recognises the broad diversity of India and, as a political document, seeks to foster a sense of inclusion. It seeks to wield a nation where its citizens practise different religions, speak varieties of languages, belong to various castes and are of different communities into the concept of one nationhood. The Indian State has no religion nor does the Constitution recognise any religion as a religion of the State. India is not a theocratic State but a secular nation in which there is a respect for and acceptance of the equality between religions”.
[Romila Thapar v. Union of India, (2018) 10 SCC 753
In the instant case wherein 5 human rights activists were charged and arrested under the provisions of Unlawful Activities (Prevention) Act, 1967 and the 3 Judge Bench of the Court with a ratio of 2:1 (Dipak Misra CJ., and A.M. Khanwilkar, J.) rejected their prayer seeking appointment of SIT and court-monitored investigation; Justice D.Y. Chandrachud dissented with the majority. He observed that, “Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”. Taking the view that a Special Investigating Team should be appointed to pursue the matter, Dr. Chandrachud, J., stated that,
“The purpose of the direction which I propose to give is to ensure that the basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty”.
The Road Ahead
*President of Bar Association of India, Prashant Kumar stated “Nearly 15 years since the retirement of Chief Justice K G Bakakrishnan, we are getting a Chief Justice who will have a two -year tenure, providing the scope for some significant institutional development in the judiciary”.6
It would not be an exaggeration if we say that the legal community has been looking forward to Justice Dr. Chandrachud’s tenure as CJI. His streak of progressive decisions and passionate encouragement for a more digitised functioning of the Courts has definitely been the topmost reasons for this optimism, as has been expertly stated by Senior Advocate Siddharth Luthra- “He (Justice Chandrachud) has a substantially long tenure which is unprecedented in this decade, and thus has a great opportunity and responsibility to make the Supreme Court more cohesive with a focus on consistency in judicial philosophy,”7 There are important challenges awaiting his arrival as well, like- issue of judicial vacancies; diversity in judiciary, and, of course, long pendency of cases. Only time will tell that how many of these goals will the Chief Justice be able to achieve. We wish him all the very best for this new phase in his career.
†Sucheta Sarkar, Editorial Assistant has reported this brief.