Contradiction, Your Honour: The Legacy Of Justice Chandrachud

The year 2016, when D Y Chandrachud took the bench, was marked by hostility between the two highest branches of the world’s largest democracy. In August, 2014, riding high on its mandate from the General Elections, the Bharatiya Janata Party (BJP) government passed the Constitution (121^st Amendment) Bill, 2014, to make way for the National Judicial Appointments Commission (NJAC). The NJAC would have scrapped India’s collegium system for the appointment of judges, a system meant to preserve the independence of the judiciary. In 2015, the Supreme Court (SC) struck down the NJAC, calling it unconstitutional. The government responded by adding Article 124A to the Constitution, changing the composition of the NJAC and revising its Memorandum of Procedure (MoP). The SC had responded to a revised draft of the Centre’s MoP on May 25, 2016 and July 1, 2016.

In the background of the government-judiciary stand-off, Chandrachud told students at an orientation programme organised by the Faculty of Law, SGT University, Gurugram to “always scrutinise those in power”. Chandrachud was not part of the bench in 2015, but legal experts say he failed to live up to his words.

“He’s a guy of contradictions. He has revolutionised our jurisprudence in privacy, free speech and reservation. At the same time, he delivered judgements for the government where he could have subjected its case to more scrutiny,” says Alok Prasanna, co-founder of Vidhi Centre for Legal Policy.

During Chandrachud’s eight-year tenure at the SC, he was part of 1,211 Benches and authored 597 judgements. Among the sitting apex court judges, he has written the most number of judgements, with 68 Constitutional judgements. “Genuinely, justifiably, he’s brought a new perspective on the issues and had a massive impact that we will be reading and applying for years to come,” says Prasanna.

Chandrachud made a quick name for himself by authoring revolutionary judgements in cases like the K S Puttaswamy vs UOI in 2017 and Navtej Johar’s case against Section 377 of the Indian Penal Code in 2018.

In 2017, newspapers were abuzz about a man who had the courage to overturn his own father’s landmark case. When Chandrachud authored the privacy case judgement, he overruled his father Y.V. Chandrachud's ADM Jabalpur verdict.

“The judgements rendered by all the four judges constituting the majority in ADM Jabalpur case are seriously flawed. Life and personal liberty are inalienable to human existence,” he wrote. “The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions,” he said, taking an opposite stand to his father Justice Y V Chandrachud, who had delivered the verdict during the Emergency.

In 2018, when the five-judge Constitution Bench read down Section 377, effectively decriminalising consensual same-sex relations in India, it was Chandrachud’s words that echoed across India and the world. “The right to love is a battle for all, not just for LGBT individuals. The right to love can transform societies that are divided by caste, religion, class, and other grounds.”

Chandrachud, who has said that India’s original dissenting judge Justice Koka Subba Rao “deeply impacted” his view of the law, established himself as a “dissenter” to watch. He has said, repeatedly, that he sees dissent as “the safety valve of a democracy”.

In the Abhiram Singh vs C.D. Commachen case, the SC majority held that religion-based vote-seeking during elections was unconstitutional. Three judges dissented.

“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,” wrote Chandrachud.

In the minority opinion, Justices Adarsh K Goel, Uday U Lalit and D Y Chandrachud held that a person was permitted to seek votes on the basis of religion if the communal claims during vote-seeking are based on genuine grievances of society, they would be considered different from blanket communal speeches.

In 2018, following his landmark ‘right to privacy’ judgement, Chandrachud found himself the sole dissenter among the SC bench that decided the constitutionality of the Aadhaar Act. Even as the bench drew on a judgement from the previous year to strike down parts of the Act, Chandrachud alone pointed out that the passing the Aadhaar Act as a Money Bill was unconstitutional.

The same year, Chandrachud dissented by writing that arresting five human rights activists for allegedly instigating violence at Bhima Koregaon under the Unlawful Activities (Prevention) Act was violative of their fundamental rights to freedom of expression and personal liberty. The then-SC judge wrote that a Special Investigation Team must probe the basis of the arrests.

While this dissent established that Chandrachud was a sensible Centre-Left voice in the SC who understood the technological and social challenges of the 21^st century, it’s worth noting that of the 16 persons arrested in relation to the Bhima Koregaon violence, only five have received bail. One person, Stan Swamy, died in custody, and one accused, G. N. Saibaba, who suffered from 90 per cent physical disability, died from medical complications months after being released after prolonged custody.

After listing the LGBT+ case before the five-judge Constitution Bench, the Chief Justice of India (CJI) was unable to convince his fellow judges to stand with marriage equality for the LGBT+ community. His 247-page dissent “involved a lot of grandstanding but has not done anything tangible. Nothing about the situation changed in India. It is one of the big social issues which he feels like he must weigh in on but that changes nothing in the legal context,” says Prasanna.

In 2018, Chandrachud dismissed two PILs seeking investigation into the death of Judge Brijgopal Harkishan Loya. Loya was the judge who presided over the Sohrabuddin Sheikh case, which involved the fake encounter death of Sheikh and had Home Minister Amit Shah as the prime accused. When Loya died of a heart attack in Nagpur on December 1, 2014, many cried foul. The same year, two PILs before the SC sought an investigation into the judge’s sudden death.

Calling the PILs an attack on the judiciary, Chandrachud refused to order an investigation based on the testimony of other judges who had reportedly been with Loya at the time of his heart attack. The SC also rejected the allegations that the then Chief Justice of Bombay High Court had offered Loya a bribe to give Shah a favourable outcome in the case. The SC said this was “hearsay”.

In 2019, Chandrachud’s refusal to address the question of whether the abrogation of Article 370 was unconstitutional “helped create a double standard for federalism in India”, says Prasanna.

The same year came the Ayodhya judgement that though unsigned, was recognisable as one authored by Chandrachud. The 2019 Ayodhya judgement, says senior advocate Anand Grover, was “allowed for the first time to establish Hindutva in the judiciary”.

Chandrachud has, in the last few years, spoken more freely in the media about his own religious beliefs. In a 2023 profile in The Week, Chandrachud was described as “a man with no vices except work”, “attentive” and “charming”. He spoke to the interviewer, as prosaically as he writes, of the “solace” that law provides in difficult times.

He also spoke of his religious beliefs and how it affects his work as a judge. “Of course, I have my family deities. I have my family puja room, which is very typical of Maharashtra to which I belong. But I don’t impose my religious beliefs on anyone… I do my work committed to the Constitution and its values,” he said in October last year.

Then weeks before his retirement date, the CJI told the media that he had consulted the gods while deciding the Ayodhya case. “I sat before the deity and told him he needs to find a solution,” the Chief Justice said, as quoted by PTI. Asserting that he prays regularly, the CJI said, “Believe me, if you have faith, God will always find a way.”

Senior Advocate Rajiv Dhavan, who argued the matter before Chandrachud, says, “Deities do not decide cases in any court in India.” He adds this is something many people have brought up since Chandrachud’s statement: “I am curious to know which deity? Lord Ram? Was pro-Hinduism part of his underlying juristic legacy.”

As CJI and Master of the Roster of the SC, Chandrachud was responsible for “dragging the Indian legal system into the 21^st century”, says Prasanna. The CJI introduced live streaming of SC proceedings.

In 2023, former Supreme Court Bar Association President and senior advocate Dushyant Dave wrote an open letter to the CJI saying he was “anguished at certain happenings about the listing of cases by the Registry of the Supreme Court”.

Dave added that “it would not be out of place to mention that these matters include some sensitive matters involving human rights, freedom of speech, democracy, and functioning of statutory and constitutional institutions”.

Dave’s letter came after a strange incident in courtroom number 2 that happened in December that year. SC Judge Sanjay Kishan Kaul and parties in the case regarding the government’s delay in judicial appointments were ready to argue the matter when both discovered, simultaneously, that the case had been deleted from the list.

“I will just say one thing. I have not deleted the matter,” Justice Kaul said in open court. He added: “I am sure the Chief Justice knows about it… some things are best left unsaid, sometimes.”

Chandrachud’s decision to take over the appointment of judges’ case from Justice Kaul caused some furore in legal circles that year. Coming in weeks before his retirement, the change in roster “hugely embarrassed Kaul in the last days of his tenure”, says Prasanna.

Thereafter, experts noted that while the court had decided that the government could not reject the collegium’s recommendations for judges, the CJI did not comment or push against the government’s delay on its nominations. “Basically, he handed over the appointment of judges to the government. Anyone with eyes can see that if the government is OK with the persons, they’ll appoint them in a day and the other way around is also true,” says Prasanna.

In September, Chandrachud’s decision to invite Prime Minister Narendra Modi to his residence to take part in Ganesh puja invited criticism from legal experts citing dilution of judicial independence from the executive. He has since defended the invite by crediting himself and the PM with “enough maturity to firmly keep aside judicial matters out of the purview of any discussion”.

“The PM and CMs do visit the residences of the CJI, CJs of high courts and judges on social occasions like children’s marriage or festivities, but I cannot recount a single occasion where either the CJI or judges of the SC ever discussed any judicial matter with the executive heads of the Union or states. Except for exchange of pleasantries, no other matter is discussed,” CJI Chandrachud told The Times of India.

However, experts say the issue is deeper. Senior Advocate Anand Grover  says, “For him, to go from liberal to Hindutva is no problem—for him, this is an asset, but for the world it’s a loss.”