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Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

Awstika Das
12 Nov 2022 3:56 AM GMT
Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform
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Justice D.Y. Chandrachud on Wednesday took on the mantle as the topmost judge of the country. All eyes remain focused on the Supreme Court as the true-blue liberal and progressive Judge started his two-year-long tenure as the Chief Justice of India this week. We take a look back at some of his most important judgements, both arising out of the High Courts where he served as a Judge for about 16 years, and the Supreme Court.

Bridging the Gap between the Traditional and the Modern

Son of former and the longest-serving Chief Justice of India, Justice D.Y. Chandrachud became a judge at the Bombay High Court, in a role which spanned more than a decade, before assuming office as the Chief Justice of the Allahabad High Court, and finally, a judge of the Supreme Court. Perhaps because he was first elevated to the bench at the turn of this century, in 2000, the current Chief Justice has attempted, in his judgements, to harmonise the traditional with modernity. There are many notable instances, such as when Justice Chandrachud allowed the legal adoption of a girl under the Juvenile Justice Act despite the Hindu couple already having a daughter, when he delivered a concurring opinion decriminalising adultery, when he was a part of the historic Bench that read down the controversial Section 377, or more recently, when he banned the two-finger test still used to determine whether survivors of sexual assault are "habituated to sex".

Notable Judgements Authored

  1. Bombay High Court

In November 2004, a Bench of which Justice Chandrachud was a part, directed the censor board to certify a feature film set in the backdrop of the 2002 communal riots in Gujarat without any cuts. It was alleged that one of the characters in the film resembled the then Chief Minister of Gujarat, Narendra Modi. The Bench noted, "No democracy can countenance a lid on suppression of events in society." [F.A. Picture International v. Central Board of Film Certification (2004)]

In December 2009, Justice Chandrachud allowed the legal adoption of a girl who had been fostered as a ward by a Hindu couple, even though they already had a daughter. It was held that courts must harmonise personal laws with secular legislation such as the Juvenile Justice Act and as such, the social welfare legislation would prevail. [In Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay @ Pathak]

In September 2010, a Bench headed by Justice D.Y. Chandrachud dismissed Vodafone International's plea challenging the Income-tax Department's decision to "look through" their purchase of a Hutchinson Telecom subsidiary based outside India and demand Rs. 12,000 crores in tax on capital gains for the indirect acquisition of the majority shareholding in the Indian Hutchinson-Essar. Although the Supreme Court took a different stand, the Bombay High Court verdict was a significant ruling. [Vodafone International Holdings B.V. v. Union of India (2010)]

In May 2011, Justice Chandrachud directed Jet Airways to pay Sahara India Rs. 478 crores within two weeks as dues for the Air Sahara buyout. This was later challenged by filing a letter patent appeal, but a Division Bench dismissed the appeal as unmaintainable. [Jet Airways (India) v. Sahara Airlines Limited (2011)]

In July 2013, Justice Chandrachud's Bench directed the removal of a bungalow constructed in a no-development zone by the then state excise minister Ganesh Naik's nephew, saying, "Nothing can be more destructive of the rule of law than the misplaced belief that some are above the law." [Sandeep Sharadchandra Thakur v. State of Maharashtra (2013)]

  1. Allahabad High Court

In January 2014, a Bench led by Justice Chandrachud, who was the then Chief Justice of Allahabad High Court, directed the state government to ensure that no mango tree in the 'Phal Patti Kshetra' (fruit belt area) in Uttar Pradesh without obtaining necessary clearances. This decision was welcomed by environmentalists and mango growers who were increasingly concerned about the rate at which mango trees were being cut in the state. [Jayant Singh Tomar v. State of Uttar Pradesh (2014)]

In March 2015, a Bench led by him outlawed the conversion of public parks for commercial use, holding that the parks had to be preserved and utilised only as recreational open spaces without altering their land use, in the interest of the right to a clean and healthy environment which formed a right to life under Article 21 of the Constitution. [Nagrik Sanghtan Sewa Samiti v. State of Uttar Pradesh (2015)]

In April of the same year, the Chief's Bench ruled that transgender persons were entitled to the status of head of a household which would allow them to take advantage of food security benefits through their ration cards. "Food security means no less to a transgender than to other segments of society. Impoverishment and marginalisation have been endemic to the transgender population," the Division Bench noted. [Ashish Kumar Misra v. Bharat Sarkar (2015)]

In November, Justice Chandrachud directed the Uttar Pradesh government to expedite the process of enforcing a complete ban on the sale of polythene across the state, following which, within a month, the state cabinet decided to ban the manufacture, import, purchase, and storage of all kinds of plastic bags. [Ashok Kumar v. Nagar Nigam Allahabad (2015)]

In April 2016, the Allahabad High Court, speaking through an order authored by Justice Chandrachud, held that the state was dutybound to comply with the orders of the human rights commissions unless it was expressly set aside. It was observed that the state government was not permitted to disregard the view of the commission and ignore the recommendations of the commission unless those were successfully challenged in appeal. [State of Uttar Pradesh v. National Human Rights Commission (2016)]

  1. Supreme Court of India

In January 2017, Justice Chandrachud wrote the dissenting opinion on behalf of the minority in a seven-Judge Constitution Bench that imposed a complete prohibition on electoral candidates from seeking votes on the ascriptive grounds of religion, race, caste, community, or language. Distinguishing between blanket communal appeals and grievance-based appeals based on the identity of the voter, Justice Chandrachud said that the latter would not come within the meaning of "corrupt practice" under the Representation of the People Act, 1951. He observed, "To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction." [Abhiram Singh v. C.D. Commachen (2017)]

In August of the same year, a nine-Judge Constitution Bench of the Supreme Court unanimously held that the right to privacy was a fundamental right. Justice Chandrachud authored the lead judgement in which he explained how privacy was an essential facet of the dignity of the human being. Interestingly, through this judgement, he overturned his father and senior Justice Chandrachud's infamous ruling in Additional District Magistrate, Jabalpur v. S.S. Shukla, which had severely limited Article 21. The current Chief Justice termed the earlier verdict as "seriously flawed". [K.S. Puttaswamy v. Union of India (2017)]

In April 2018, the Supreme Court overturned a decision of the Kerala High Court annulling the marriage of Hadiya and Shafin Jehan on the ground that the girl, who had converted to Islam against the wishes of her family, was a victim of indoctrination and psychological kidnapping. The Bench came down heavily upon the High Court, terming the case as one of "patriarchal autocracy". In his concurring opinion, Justice Chandrachud upheld Hadiya's autonomy "over her person" and said how she chose to lead her life was "entirely a matter of her choice". [Shafin Jahan v. Asokan K.M (2018)]

In July, a five-Judge Bench unanimously held that the Chief Minister, and not the Lieutenant Governor was the executive head of Delhi. The Bench ruled that the latter was bound by the former's advice and has no independent power under the Constitution. The controversy had arisen due to the sui generis position that the National Capital Territory occupied. Justice Chandrachud delivered a concurring opinion. [Government of National Capital Territory of Delhi v. Union of India (2018)]

In September of that year, in another landmark decision that overruled a verdict of the senior Justice Chandrachud, a Constitution Bench of five Judges decriminalised adultery by declaring Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure, 1973 as unconstitutional. Justice Chandrachud speaking about the view that his father had taken, said that it could not be regarded as the "correct exposition" of the constitutional position since it was founded on the notion that a woman entering a marriage lost her voice, autonomy, and agency. [Joseph Shine v. Union of India (2018)]

In the same month, a five-Judge Bench of the Supreme Court unanimously held Section 377 of the Indian Penal Code, 1860 to be unconstitutional insofar as it criminalised gay sex between consenting adults, reversing an earlier decision rendered by a two-Judge Bench upholding the constitutionality of the impugned provision. "It is difficult to right the wrongs of history. But we can certainly set the course for the future," said Justice Chandrachud in his concurring opinion, in which he extended constitutional protection to sexual orientation. [Navtej Singh Johar v. Union of India (2018)]

Yet another watershed moment in the history of Indian judicial activism came in the same month when a majority of a five-Judge Constitution Bench held that the Sabarimala Temple's custom of preventing the entry of women in their 'menstruating years', between the ages of 10 and 50, was unconstitutional. In his concurring opinion, Justice Chandrachud held the practice to be violative of constitutional morality and even of Article 17, which encapsulates a constitutional guarantee against untouchability. [Indian Young Lawyers Association v. State of Kerala (2019)]

The Supreme Court, in September, also ruled in favour of live streaming of court proceedings, particularly in cases having constitutional and national importance, in order to throw open the apex court to the general public and secure to them the right to access justice. [Swapnil Tripathi v. Supreme Court of India (2018)]

The month of September was remarkable because it witnessed two historic dissents, both penned by Justice Chandrachud. The first dissent was against the majority judgement of a Constitution Bench that upheld the Aadhaar Act, 2016. The lone voice of dissent, Justice Chandrachud held that the impugned legislation was unconstitutionally passed as a money bill, and also examined aspects of the act that affected the privacy, dignity, and autonomy of individuals. [K.S. Puttaswamy v. Union of India (2018)]

The second dissent, by which Justice Chandrachud recommended a probe by a Special Investigation Team into the arrest of the activists who allegedly instigated violence at Bhima-Koregaon and participated in a criminal conspiracy against Prime Minister Narendra Modi, was equally powerful. [Romila Thapar v. Union of India (2018)]

In a major win for women in the Indian Army, a Bench headed by Justice Chandrachud ordered that they would be eligible for permanent commission, irrespective of their years of service. The Bench held that the non-consideration of women for criteria or command appointments was not legally sustainable. Justice Chandrachud wrote the judgement, in which he categorically noted, "Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers." [Secretary, Ministry of Defence v. Babita Puniya (2020)]

In March 2021, the Supreme Court dealt with the criteria for granting of permanent commissions to women army officers, which were facially neutral, but discriminatory in practice. A Division Bench led by Justice Chandrachud held that the requirement that women officers would have to perform better than their lowest-scoring male counterparts was arbitrary and irrational, and as such, could not be allowed, while implementing the Babita Puniya judgement. It was held, "A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic." [Lt. Col. Nitisha v. Union of India (2021)]

In April, a Division Bench headed by Justice Chandrachud convicted an appellant for the sexual assault of a visually challenged girl belonging to a Scheduled Caste. While confirming the judgement of the Andhra Pradesh High Court against which the criminal appeal had been preferred, notably, the apex court also emphasised on intersectionality. "[It is] imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman". The Court is not only sensitive towards the intersectional social location of the victim of the crime but is also positing it as a relevant consideration in various factual and legal determinations under the criminal trial," the Bench noted. [Patan Jamal Vali v. State of Andhra Pradesh (2021)]

In May, a three-Judge Bench under Justice Chandrachud's leadership, taking suo motu cognisance of the "grim situation" of the country reeling from the shock of the second wave of COVID-19 and the non-availability of essential resources, issued a slew of directions. [In Re: Distribution of Essential Supplies and Services During Pandemic (2021)]

In May of this year, Justice Chandrachud led a Division Bench that held that the recommendations of the Goods and Services Tax Council were not binding on the Centre and the state governments, and would only have "persuasive value", in the interest of not disrupting the fiscal federalist structure of the country. The Bench said that only some of the recommendations of the council in relation to, inter alia, tax rate and taxable goods, were binding on the Union and the state governments. Importantly, it was clarified that both the Parliament and the State Legislatures could equally legislate on GST matters. [Union of India v. Mohit Minerals (2022)]

In August of last year, Justice Chandrachud's Bench confirmed a 2014 Allahabad High Court order and directed the demolition of Supertech's illegal Emerald Court towers in Noida, since the construction plan sanctioned by the Noida Authority was found to be contrary to building regulations. A year later, on August 28, 2022, the Noida Twin Towers were finally demolished. [Supertech Limited v. Emerald Court Owner Resident Welfare Association (2021)]

In November, the Supreme Court granted relief to a Dalit student who could not furnish the seat acceptance fees for admission to IIT Bombay before the deadline due to a technical error. Justice Chandrachud, observing that on humanitarian grounds, the Court had to sometimes "rise above the law", directed that the petitioner be admitted to the seat allotted at the Indian Institution of Technology, Bombay in the Civil Engineering stream or to any other seat available in any of the IITs, in any of the streams. [Prince Jaibir Singh v. Union of India (2021)]

In March 2022, a Bench headed by Justice Chandrachud ruled out any constitutional infirmity in the government's One Rank, One Pension (OROP) policy for defence forces and ordered a re-fixation exercise to be carried out as per the policy. [Indian Ex Servicemen Movement & Ors v. Union of India (2022)]

In September of this year, another Bench headed by Justice Chandrachud affirmed the right of women, irrespective of their marital status, to seek safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act, 1971 holding that the distinction between married and unmarried women under the abortion laws was "artificial and constitutionally unsustainable". Notably, the Supreme Court also held that the meaning of rape must be held to include "marital rape" for the purpose of the Medical Termination of Pregnancy Act and the rules framed under it. [X v. The Principal Secretary, Health and Family Welfare Department, Government of National Capital Territory of Delhi (2022)]

Most recently, in October, the Supreme Court declared that anyone who conducted a "two-finger test" on survivors of rape or sexual assault would be found guilty of misconduct. While issuing this warning, the Bench noted, "The so-called test has no scientific basis. It instead re-victimises and re-traumatises women. The test is based on an incorrect assumption that a sexually active woman cannot be raped." [State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai (2022)]

Commitment to Constitutionalism and Reform

Justice Chandrachud's judicial decisions are a testament to his erudition and love for constitutionalism, but also reveal his penchant for reform and his empathy for the poor and the disenfranchised. Justice Chandrachud is a favourite, particularly with the younger generations. "His vision of Indian society as a melting pot of diversity and a bastion of plural, inclusive values shines forth in his judgements," his former law clerk, Rahul Bajaj, wrote for The Week.

Even otherwise, as the chairman of the e-committee of the Supreme Court, for instance, he has given impetus to the recent developments with respect to live-streaming and recording of court proceedings and digitisation, in order to make the judicial system more accessible. Speaking at former Chief Justice Uday Umesh Lalit's farewell function, Justice Chandrachud pithily noted that the outgoing Chief Justice had "transformed the judicial system from something that people must reach out to, to something that reaches out to people", and expressed his desire to "provide continuity to all the good work" of his predecessor. Reports suggest that major plans to make the Supreme Court more digital-savvy and litigant-friendly are likely to be rolled out in the next two years, under Justice Chandrachud's watchful guidance. "By the end of his tenure, we could see full digitisation," a senior advocate has told Deccan Herald.


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