11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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Chief Justice DY Chandrachud:

Landmark Judgements,
Constitutionalism, and Penchant for
Reform
Awstika Das 12 Nov 2022 6:56 AM

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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.

Also Read - Why LiveLaw Premium Subscription Is A Must For Your Legal

Research And Practice

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,

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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".

Also Read - Union Law Minister Kiren Rijiju Criticises Lawyers' Protests;

Says Not Good To Question Every Collegium Decision Which Has Govt

Support

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)]

Also Read - FIR Registered In 1990 ; Trial Not Complete Even After Three

Decades : SC Directs Kolkata Court To Complete Trial Within 6 Months

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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]

Also Read - Contractual Expressions Must Be Understood As Intended By

The Parties To The Contract : Supreme Court

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)]

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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)]

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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)]

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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.

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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)]

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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)]

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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)]

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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,

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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

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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

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"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

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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

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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.

TAGS CJI DY CHANDRACHUD SUPREME COURT

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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

'इसमें कोर्ट का कोई दखल नहीं'- सुप्रीम कोर्ट ने दो बच्चों के मानदंड और देश भर में जनसंख्या
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11/19/22, 5:34 PM Chief Justice DY Chandrachud: Landmark Judgements, Constitutionalism, and Penchant for Reform

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