Justice Chandrachud likely to be next CJI

By K.Ramakanth Reddy

K.Ramakanth Reddy

Justice Dr. Dhananjaya Yeshwant Chandrachud was born on November 11, 1959 to former Chief Justice of India, Justice Y.V. Chandrachud. 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. On 29th March 2000, Justice Chandrachud was appointed as Additional Judge of the Bombay High Court. On 31st October 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 13th May 2016.  Justice Chandrachud is likely to serve as the Chief Justice of India for a period of 2 years starting from November 2022 to November 2024. Thanks to the libertarian approach visible in his judgments, many are eagerly waiting for Justice D.Y. Chandrachud to become CJI in 2022-24.

Justice D.Y. Chandrachud has delivered powerful judgements be it concurring or dissenting which has shaped the structure of judiciary in a prominent way. Justice Chandrachud, or ‘DYC’, as he is referred to in legal circles, was elevated to the Supreme Court in May 2016. Since then, he has been handpicked by three successive CJIs — T.S. Thakur, J.S. Khehar and now Dipak Misra — to sit with them in Courtroom 1, barring a few days in between. This ensured that he was part of all the big cases before the apex court. In a little over two years, he has been on benches that have delivered more than 220 judgments. He has been part of the landmark judgments on privacy, euthanasia, decriminalisation of homosexuality, adultery, entry of women into Sabarimala, the Hadiya case, the medical college cases and the PIL on mandatorily playing the national anthem in cinema halls.

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His judgments from the recent past have been consolation to many for his apparent willingness to stand up to government, tradition, and religion. His coming tenure as Chief Justice of India from November 2022 to November 2024, therefore, could be a much awaited one for long-oppressed sections of society.Here are some key takeaways from his high-profile judgments:

Justice Dr. D.Y. Chandrachud has been a part of The Secretary, Minister of Defence v. BabitaPuniya, In this major verdict, 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.

In Rajesh v. State of Haryana, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., summarised the principles relating to conduct of a Test Identification Parade (TIP) and held that

“… the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

The landmark judgement of K.S. Puttaswamy v. Union of India (Privacy- 9 Judge) Justice Chandrachud was part of the 9 Judge Bench 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”.

The Privacy case also marked a unique moment in judicial history of India; as Justice 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”.

Navtej Singh Johar v. Union of India, in this landmark 5 -Judge Bench decision which became instrumental in upholding the rights of the LGBT 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. 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.

Joseph Shine v. Union of India, the 5-Judge Constitution Bench held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. 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”.

In Krishna Kumar Singh v. State of Bihar, Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7 Judge Bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority Justice Chandrachud writing down the majority judgment for himself and S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ., laid down the principles for promulgation of ordinances.

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, 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”.

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. D.Y. Chandrachud, JJ.,inShafin Jahan v. Asokan K.M, terming the instant case to be perfect example of, “patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel”, 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 Himachal Pradesh Bus Stand Management and Development Authority v. The Central Empowered Committee, the 3 Judge bench comprising Justice Chandrachud as well upheld the NGT order for the destruction of hotel constructed illegally. This judgement is lauded for its extensive elucidation on the concept of ‘Environmental Rule of Law’, a unified understanding of law and rule of law. That environmental law is a facet of the rule of law and at the same time a unique understanding of law. The purpose is to encapsulate all stakeholders in formulating various strategies to tackle present ecological changes. Furthermore, it held that the Court must be cognizant of the fact that their actions have a direct consequence on nature and therefore must have remedies that prevent present harm and deter future harm.

In Gujarat UrjaVikas Nigam Ltd. vs Amit Gupta, in this case the court while upholding the decision of the NCLAT to stay the termination of the PPA for initiation of insolvency proceeding, proceeded to hold the scope of NCLT and NCLAT, that they have the powers to adjudicate on matters solely or relating to the insolvency of the corporate debtor as per section 60(5)(c) of IBC. The SC also observed that the NCLT and NCLAT have to be vary of adjudicating on contractual matters that are related to insolvency. Stating that its jurisdiction should be applied in cases where its intervention would prevent death of the corporate debtor and not its dilution. Furthermore clarified, that the residuary jurisdiction of NCLT and NCLAT are limited to matter under provision of IBC and Companies Act.

In Arun Kumar Jagatramka vs. Jindal Steel and Power, it was held that an entity which is ineligible/barred under Section 29A IBC for submitting resolution plan cannot go through the back door and submit a comprise or arrangement under Section 230 of Companies Act. The scheme of compromise under Section 230 Companies Act, while the company is undergoing liquidation under the provisions of IBC are in the same continuum.

In Patan Jamal Vali vs. State of AP, the SC upheld the conviction of the accused for the rape of a blind Scheduled Caste woman. The court held that when making a judgment, it is important to look at the issue with intersectional lens to evaluate how multiple sources of oppression might affect the circumstances of the individual.

In the case of SalimbhaiHamidbhai Menon vs. NiteshkumarMaganbhai Patel, the 2 judge bench held that interim orders passed which grant stay of arrest or direct no coercive action must be taken cannot be upheld without the same being put into writing. ‘Oral directions’ are irregular in law and has the potential to cause serious misgivings.

In Rajesh vs State of Haryana, In this case the Supreme Court with the observation of Justice Chandrachudsummarised the principles regarding Test Identification Parade (TIP) and also held that the purpose of TIP is to reassure the identity of the accused. It cannot be said there is guilt, purely based on the refusal of the accused to undergo TIP.

In Unitech Ltd. vs Telangana State Industrial Infrastructure Corporation (TSIIC), the question before Justice Chandrachudwas whether the presence of an arbitration clause oust the jurisdiction of the court under Article 226. The Supreme Court held that the presence of the clause is not an absolute bar to remedies available under Art. 226. It reiterated that the jurisdiction of the court under Art. 226 cannot be ousted on the basis of dispute pertaining to contractual relations, but further explained that 226 is a tool to prevent arbitrary exercise and/or abuse of state power. Whether 226 can be invoked but be tried and heard on a case to case basis.

In Shivraj Singh Chouhan vs. Speaker, MP Legislative Assembly, Justice Chandrachud held that the Governor has the constitutional authority to call for a floor test in the legislative assembly if he believes that the incumbent government does not command the confidence of the house. Furthermore, it held that this power subsists at any point, thereby to say the Governor cannot call for a floor test when the house is alive and is session is false. Such power of the Governor shall not be deemed to be beyond constitutional authority.

In Gujarat Mazdoor Sabha vs. State of Gujarat, Hon’ble Justice Chandrachudstruck two notifications of the Gujarat government, which were issued under Section 5 of the Factories Act, exempting all factories under the Act regarding weekly hours, daily hours etc. for adult workers. It held that Covid-19 and economic losses would not come under the interpretation of ‘public emergency’ and ‘internal disturbance’. Additionally, held that rights provided under Factories Act, are guaranteed under Article 21 and 23, and the DPSPs and the restriction of these rights would be needed to tested on proportionality, which in this case failed to do so.

In Alembic Pharmaceuticals vs. Rohit Prajapati, Justice Chandrachud held that the order of NGT for the closure of Alembic Pharmaceuticals for not taking Environmental Clearances (EC) was not proportional and allowed for the resumption of business on the condition of compensation of 10 crore be paid. Furthermore, SC reiterated the position of the Court that ex post facto EC’s are unsustainable in Law.

In M. Siddiq vs. Mahant Suresh Das, the remarkable judgement known as Ram Janmabhoomi case, here, Justice Chandrachud with four others overruled the Allahabad HC judgement, granted the title to the diety, Sri Ram Virajman, and further directed the State to grant the Sunni Waqf Board to an alternate site at Ayodhya for the construction of mosque.

In Indibily Creative Pvt. Ltd. vs. Government of West Bengal, the SC in this case, held that the airing of a satirical film should not be restricted by the government, and that criticism through art, film, etc. is an extension to the freedom of expression. Police cannot supress criticism or ideas without any statutory authority and is impermissible if the film has received certification from censor board. Held that in the event that financial loss is incurred due to arbitrary action by State authorities for breach of fundamental rights, the State is liable to compensate those affected.

In Central Public Information Officer, SCI, vs. Subash Chandra Agarwal dealt by five Judges, RTI was filed regarding intimation on the assets of Judges along with the appointment of the Judges. The question was regarding whether seeking such information is considered interference in the functioning of the judiciary. Held, that CJI is a ‘public authority’ under the ambit of the RTI Act. Additionally, held that there is a requirement for a balancing of the right of privacy and public interest. That the realm of public interest, also comprises of the adequate performance of the public authorities. Justice Chandrachud in his concurring opinion observed that the appointment of the judges should be under the scope of the Act and that under balancing the need of right to privacy and public interest, mere stating privacy is insufficient but also must state reasons for the same. Furthermore, he observed that reasons such as ‘embarrassment’ to the institution and create ‘unnecessary debate’ are ipso facto be ruled out as irrelevant.

In the remarkable judgement of Indian Young Lawyer’s Association vs. State of Kerala, the five judge bench judgmentalso known as the Sabarimala Case, in this case the SC held that the condition barring menstruating women from entering the Sabarimala Temple, is violative of Article 14. Thereby allowing all women to enter and offer prayers to the deity.

In Reliance Life Insurance Co. Ltd. vs. RekhabenNareshbhai Rathod, justice Chandrachud held that a material non-disclosure, misrepresentation or concealment in the insurance policy would render it voidable at the option of the insurer. Observed that such concealment would have significant bearing on the insurer’s decision to take the risk. Observed that the withholding/concealment of pre-existing insurance policy would be a material fact and upheld the insurer’s decision to repudiate the insurance.

In Branch Manager, National Insurance Company vs Mousumi Bhattacharjee Justice Chandrachud held that the death due to encephalitis malaria by virtue of a mosquito bite is not covered under the accidental death insurance cover and would not be deemed to be an ‘accident’. Held that for in consideration of an accident element of unforeseen or unexpected nature is required, cannot say that malaria through mosquito bite to be unforeseen/unexpected but of chance. ‘Accident’ would not mean things that occur in the natural course of events. 

In NCT vs. Union of India, the five Judge bench comprising Justice Chandrachud and four others also referred as the Delhi Special Status case, the SC unanimously held that the Chief Minister is the executive head of the NCT and not the Lt. Governor. Additionally, held that the Lt. Governor, is bound by the ‘aid and advice’ of the Council of Ministers of the State on all matters that the legislature has power to makes laws. Furthermore, they held that the NCT is not a state. Justice Chandrachud held that the cabinet form of the government is a basic structure.However, this judgement was undone with the implementation of the NCT (Amendment) Act, 2021, w.e.f. 27.04.2021, where it states that the Lt. Governor is the government.

Presenting judgments many times in stark contrast to those of his co-judges, the Supreme Court’s Justice Dhananjaya Yashwant Chandrachud has established that he intends to uphold the values of the Indian Constitution – even if his is the lone dissenting voice echoing in the chambers of country’s highest judicial body. The notable Dissenting judgements-

K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), 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”.

The 9-judge bench, by a ratio of 7:2 in Jindal Stainless Ltd v. State of Haryana, upheld the validity of the entry tax imposed by the States on goods imported from other States. It was held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”. Delivering a dissenting opinion Dr. D.Y. Chandrachud, J., observed that,

In order to determine whether a law providing for the imposition of a tax constitutes a restriction on the freedom of trade, commerce and intercourse, the principle that must be applied is whether the direct and inevitable effect or consequence of the law is to impede trade and commerce. The direct and inevitable consequence for the purposes of Part XIII of the Constitution is not the same as an infringement of the fundamental right to carry on an occupation, trade or business under Article 19(1)(g)”. He further observed that, “Article 301 sub-serves the constitutional goal of integrating the nation into an economic entity comprising of a common market for goods and services”.

In a 4:3 verdict, the 7-Judge Bench in Abhiram Singh v. C.D. Commachen, 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., observed that ‘his’ as in Section 123(3) of RP Act does not refer to the religion, race, caste, community or language of the voter. Dr.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, 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 above mentioned judgements and the libertarian approach of Justice D.Y.Chandrachud, relatively uncommon to Indian judges, has already got many eagerly anticipating his future tenure as Chief Justice of India (CJI). Chandrachud, son of India’s longest-serving chief justice, Y.V. Chandrachud, will hold the highest judicial office from 9 November, 2022, to 10 November, 2024.  It is interesting to capture the will of Justice Chandrachud behind this unrelenting endeavour of implicating constitutional ethos onto a resisting society. Be it the cause of the LGBTIQ community or of marginalised women, Justice Chandrachud has taken the lead role in creating inclusive jurisprudence for their legal rights. In multiple judgments, he has invoked constitutional morality to safeguard the non-binary genders from the wrath of cultural conformity, and relied on the tenets of transformative constitutionalism to militate against society’s prejudices, and thus create an ambiance of fraternity. This is why Justice Chandrachud is looked at by many within the legal community as a harbinger of justice that our Supreme Court needs.

K.Ramakanth Reddy, Sr. Advocate, Empanelled Senior Advocate for the Hon’ble High Court of Telangana

Delhi Office: 68, White House, 10 Bhagwandas Road, New Delhi–110 001   [Nr. Supreme Court]. Mobile: 9515100111   e-mail: rama3173@gmail.com

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