Chandrachud: The 'dissenting judge' who takes over as 50th CJI today

Justice Dhananjay Yashwant Chandrachud, who takes oath as the 50th Chief Justice of India today (November 9), is famously known for his strong views on dissent. Terming dissent as a “safety valve of democracy”, the judge had clearly expressed his views against the “blanket labelling” of dissent as anti-national or anti-democratic and employing state machinery to curb dissent because that instils “fear and creates a chilling atmosphere”.

Interestingly, Justice Chandrachud had made these comments when massive protests had broken out in many parts of the country due to the Citizenship Amendment Act (CAA) and the proposed National Register of Citizens (NRC).

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“The destruction of spaces for questioning and dissent destroys the basis of all growth — political, economic, cultural and social. In this sense, dissent is a safety valve of democracy,” he said. If dissent is not allowed, the pressure cooker may burst, he had said. To him, the true test of a democracy is the ability to allow individuals to express their opinion.

The 63-year-old Justice Chandrachud, who started his legal career in the Bombay High Court and moved to Supreme Court in 2016, had made his dissenting views against critical issues clear through his profound judgments. His judgments on Aadhaar, which he said was a fraud on the Constitution; on right to privacy as “intrinsic to human dignity”, criminalising marital rape to reading down section 377 of the IPC, had made him a keenly watched judge. He is often praised for his scholarly, erudite and progressive views on various issues.

An illustrious lineage

Justice Chandrachud follows in the footsteps of his father YV Chandrachud when he takes over as CJI.  The senior Chandrachud, India’s 16th CJI, was the longest-serving in that post. His mother Prabha Chandrachud was a performer and singer for All India Radio (AIR).

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Born on November 11, 1959, Justice Chandrachud obtained an arts degree in economics honours from St Stephen’s College, New Delhi and an LLB degree from Campus Law Centre, Delhi University.

After completing his LLM degree and a Doctorate in Juridical Sciences (SJD) from the prestigious Harvard Law School, USA in 1986, he joined Bombay high court as a senior advocate. During this time, he appeared in several important cases involving public interest litigation, rights of bonded women workers, rights of HIV positive workers in the workplace, contract labour and the rights of religious and linguistic minorities.

He was appointed as an additional judge of the Bombay High Court on March 29, 2000, and served there till his appointment as Chief Justice of the Allahabad High Court on October 31, 2013. Justice Chandrachud moved to the Supreme Court on May 13, 2016 and it is here the “formidable” judge authored notable judgments.

Prominent  judgments

In September 2018, in the Romila Thapar & Ors vs Union of India judgment regarding the arrest of five human rights activists in the Bhima Koregaon case, Justice Chandrachud was the sole dissenter among the three judge bench. He stated ‘that the issue was whether the arrests violated the accused of their fundamental rights to free expression and personal liberty guaranteed by Articles 19 and 21 of the Constitution.’

Further, doubting the impartiality of the Maharashtra police, Justice Chandrachud stated that in this particular case the investigation by the Special Investigating Team (SIT) is needed and the SIT should be constituted for an independent and fair investigation. He also wanted the investigation to be monitored by the court.

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The Aadhaar case

In the KS Puttaswamy v Union of India case too, Justice Chandrachud was the sole dissenter, when he had held that the Aadhaar was passed unconstitutionally. The passing of the Aadhar bill as a money bill is a fraud on the constitution, he said adding that a Money Bill must deal “only” with tax-related issues, but Aadhaar is wider in its scope. 

Besides, violating informational privacy and data protection, the technology deployed in the Aadhaar scheme subsumes an individual’s different constitutional identities and reduces them into a single identity of a 12-digit number, he had observed.

A champion of women’s rights

Justice Chandrachud was on the bench that heard the Sabarimala Temple Entry case, where he held that the exclusion of women between the ages of 10-50 years from Sabarimala Temple violated “constitutional morality”. Recently, in a landmark judgment, a bench of Justices DY Chandrachud, AS Bopanna and JB Pardiwala brought the inclusion of unmarried women in the Medical Termination of Pregnancy Act (MTP) and said that the exclusion of unmarried women from the act was ‘discriminatory’.

He was part of the judgment instrumental in criminalising marital rape. The MTP Act recognises a husband’s act of sexual assault or forced intercourse committed on his wife as ‘rape’, Justice Chandrachud said. In his words, the institution of marriage does not influence the answer to the question whether a woman has consented to sexual relations. Against “sex stereotypes” and “gender discrimination”, in February 2020, a bench headed by Justice Chandrachud ruled in favour of women officers in the Army getting permanent commission and command postings.

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Against ‘love jihad’

In a historic decision in 2018, a bench of Supreme Court judges – Chief Justice Dipak Misra, AM Khanwilkar and DY Chandrachud overturned a lower court’s order which had declared the marriage of Akhila Ashokan (who changed her name to Hadiya) and Shafin Jahan as ‘illegal’. The court, while saying that the NIA could continue the probe in the matter, upheld that the freedom to decide on marriage and changing of religion is within their right to privacy and liberty.

Decriminalisation of homosexuality

In August 2017, Chandrachud was a member of the bench of the Supreme Court which declared that the right to privacy was a fundamental right. This led to the decriminalisation of Section 377 of the Indian Penal Code in the Navtej Singh Johar v. Union of India case.

Later, while giving a lecture, Justice Chandrachud recalled that he was one of the five judges who wrote the historic judgment. “I was lucky enough to be the part of that bench that passed the judgment. In the case, we went back and reversed our own view which said that Section 377 IPC was constitutional,” he said.

On the fourth anniversary of the judgment, he advocated for structural changes as well as attitudinal changes towards homosexuals. “Equality is not achieved with the decriminalisation of homosexuality alone but must extend to all spheres of life including the home, the workplace, and public places,” he said.

Quoting Maya Angelou’s Still I rise, he said, “At the heart of personal liberty lies the freedom to choose who we are, to love whom we will, and to live a life that is true to our most authentic selves, not only without the fear of persecution but in full hearted joy and as equal citizens of this country.”

Speaking truth to power

In another one of his celebrated talks, Justice Chandrachud said, democracy needs the power of truth to survive, and as such one can consider ”speaking truth to power” as a right of every citizen which they must have in a democracy but equally it is also the duty of every citizen.

Asserting that democracy and truth go hand in hand, Chandrachud, quoted philosopher Hannah Arendt, to say that ”totalitarian governments constantly rely on falsehood in order to establish dominance”. ”Similarly, truth is important in modern democracies which have been described as ‘spaces of reason’, since any decision must be backed by adequate reasons and because a reason which is based upon a falsehood would be no reason at all,” he had said, while delivering the sixth Justice MC Chagla Memorial Lecture.

The relationship that truth shares with democracy is that of both a sword and a shield and the scope for extensive deliberation, particularly in the age of social media, exposes multiple truths so much so that it seems like we live in an ‘age of lies’, and that shakes the very foundation of a democracy, Justice Chandrachud observed.

The new CJI’s challenges

Justice Chandrachud’s tenure will be closely scrutinised as he faces multiple challenges ranging from the judicial appointment process, to addressing the pendency of cases, to improving the standards of justice delivery across the country.

According to experts, he has to primarily tackle the issue of backlog of cases and predictability of law. Also, the next challenge is the balance between privacy rights and freedoms and societal needs: the use and misuse of social media and the ability to bring balance. However, the legal fraternity believed that Justice Chandrachud with his understanding of the constitutional and social ethos of our country, possesses the “intellectual heft” to handle these issues with clarity and vision.

Senior Advocate Nitin Thakker, President of Bombay Bar Association told Bar and Bench, that the need of the hour is to fill the vacancies of judges to higher judiciary, particularly in Mumbai. This needs to be tackled on an urgent basis, he said, adding that they hoped the judicial infrastructure all over the country would be improved under his captaincy. Moreover, the Bombay High Court, being one of the oldest, needs an appropriate new abode.

While senior advocate Manu Singhvi pointed out in the same report that the CJI must tackle the pendency of over 4 crore cases in Indian courts. He wanted quick consensus on vacancies to be filled, exhort high courts to fill-up trial court vacancies, activate special night courts and fast track courts and “to use technology to make a large part of this 4 crore plus arrears collapse like a house of cards”.

A workaholic, Chandrachud presided over a bench on September 30, 2022 that sat till 9.10 pm, around five hours beyond the regular working time of the apex court, to hear 75 cases before the onset of the Dussehra vacations. So, there is a lot of hope and expectations from Justice Chandrachud, as he takes over as the 50th CJI in the 75th year of India’s freedom.