5 JUDGEMENTS BY DY CHANDRACHUD

1. The Secretary, Minister of Defense v. Babita Punia, (2020 SCC Online SC 200)

In this landmark judgement, the bench of Dr. DY Chandrachud and Ajay Rastogi, they
ordered that the women will be granted permanent commission and would be applicable to all
women officers in the Indian Army. Holding that the blanket non-consideration of women for
criteria of women for criteria of 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 board should not considered
for any criteria or command commitments. Command assignments are not automatic for men
SSC officers who are granted PC and would not be automatic for women either.1

The court did not take the submissions made by the Union of India and took strong
exceptions to their submissions. The court terminated their submissions “disturbing”, the
court said that relying on the “inherent physiological differences between men and women”
rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are
the weaker sex! and may not undertake tasks that are “too arduous” for them, it said. To
which the court said that-

“Underlying the statement that it is a “greater challenge” for women officers to meet
the hazards of service “owing to their prolonged absence during pregnancy,
motherhood and domestic obligations towards their children and families” is a
strong stereotype which assumes that domestic obligations rest solely on women.”

The court further highlighted that various other commendation certificates and laurels
achieved by the women officers have been placed on record. The court hence, issued the
following decisions-

 The policy decisions which have been taken by the Union Government allowing the
grant of permanent commissions to SSC women officers in all the ten streams where

1
Prachi Bhardwaj, GRANT PERMANENT COMMISSION TO ALL WOMEN OFFICERS IN ARMY WHO OPT FOR IT
WITHIN 3 MONTHS: SC TO CENTRE [FULL REPORT] | SCC BLOG SCC BLOG (2020),
https://www.scconline.com/blog/post/2020/02/17/grant-permanent-commission-to-all-women-officers-in-army-
who-opt-for-it-within-3-months-sc-to-centre/ (last visited May 15, 2021).

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 women have been granted SSC in the Indian Army is accepted subjected to the
following:
 All the women officers on SCC shall be considered for the grant of the PC’s
irrespective of any of them crossed fourteen years or, as the case may be, twenty years
of service;
 This option would be available to all the women presently in service as SSC officers.
 The women officers on SSC with more than fourteen years of service who do not opt
for the grant of the grant of the PC’s will be entitled to continue in service until they
attain twenty years of pensionable service;
 As a one-time measure, the benefit of continuing in service until the attainment of
pensionable service shall also apply to all the existing SSC officers with more than
fourteen years of service who are not appointed on PC.
 The SCC women with over twenty years of service who are not granted PC shall
retire on pension in terms of the policy decision; and
 At the stage were opting for the grant of PC, all the choices for specialization shall be
available to women officers on the same terms as for the male SSC officers. Women
SCC officers shall be entitled to exercise their opinions for being considered for the
grant of PCs on the same terms as their male counterparts.
 SSC women officers who are granted PC in pursuance of the above directions will be
entitled to all consequential benefits including promotion and financial benefits.
However, these benefits would be available to only those officers in service who
approached Delhi High Court by filing the writ petition and those who retired during
the course of the pendency of the proceedings. 2

2. Rajesh v. State of Haryana, (2020 SCC Online SC 900)

 The purpose of test identification parade is to test the whether the witness remembers
correctly the person he claims to have seen as the offender when the alleged crime
took place. It is a way to ensure that the claim of the witness is not based on any sort
of external aid or tutoring. It helps the prosecution with the determination of the
question whether the persons who claim to be present at the time of crime or any of
them can be used as eyewitnesses for the purpose of making their case.3

2
ibid
  When we look at the Code of Criminal Procedure, 1973 or the Indian Evidence Act,
1872, there isn’t one specific statutory provision which can be pointed out as stating
the test identification parade. It is a stage in the process of investigation in a crime.
The investigating authority is not statutorily compelled to conduct an identification
parade nor is there a statutory provision which grants on the accused a right to claim
the conduction of an identification parade.
 In that context, Section 162 of the Code of Criminal Procedure, 1973 governs the
conduction of test identification parade.
 In order to prevent the possibility that the witness sees the accused before the
conduction of test identification parade, it should be ideally held as soon as possible
after the arrest of the accused is made.
 When an accused is identified in a court of law, that particular piece of evidence is
considered as substantive.
 The facts which enable the identification of the accused in this process are considered
as relevant facts falling within the dimensions of Section 9 of the Indian Evidence
Act, 1872.
 A test identification parade may be used for the purposes of corroboration, if it is
required, when the identification of a witness is done in a court of law.
 When the court as a rule of prudence, does not consider it sufficient to rely upon the
evidence given by a particular witness without any other form of corroboration, the
court can look for such corroboration of the identification of the accused by the
witness, for its satisfaction, in the identification proceedings which have been
conducted prior.
 A test identification parade is not considered as a substantive piece of evidence. This
implied that if there is a failure to hold the parade, it is does not ipso facto result in
making such evidence inadmissible.

3
Prachi Bhardwaj, TWO MEN WALK FREE AFTER 12 YEARS IN PRISON AS SC HOLDS THAT CONVICTION CANNOT
BE BASED SOLELY ON REFUSAL TO UNDERGO A TEST IDENTIFICATION PARADE | SCC BLOG SCC BLOG (2020),
https://www.scconline.com/blog/post/2020/11/03/two-men-cleared-of-murder-walk-free-after-12-years-in-
prison-as-sc-holds-that-conviction-cannot-be-based-solely-on-refusal-to-undergo-a-test-identification-parade/
(last visited May 15, 2021).

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  The amount of weight given to such identity is a matter for the court to decide based
on the facts of the case.
 Identification of the accused in a TIP or in court is not essential in every case where
guilt is established on the basis of circumstances which lend assurance to the nature
and the quality of the evidence; and
 A court of fact may decide if an adverse inference can be made against the accused
for refusing to engage in a TIP based on the background and circumstances of each
case. However, before reaching a conclusion about the accused's guilt, the court will
ask for substantial corroborating evidence.

The prosecution's inability to cross-examine a ballistics witness in a particular case must

be evaluated in the light of the quality of the evidence available. Where documentary
proof of an unimpeachable character is present and the extent of the injury is consistent
with the direct evidence, the prosecution's case does not require the review of a ballistics
specialist. The inability to test the ballistic investigator, on the other hand, would take
importance if clear proof was not sufficient or if the existence of such evidence was in
question. Further noticing that the prosecution has failed to establish its case beyond
reasonable doubt, the Court acquitted the appellants, giving them the benefit of doubt.
The appellants have already undergone over 12 years of imprisonment. The Court, hence,
directed that they shall be released and their bail bonds be cancelled unless they are
wanted in connection with any other case.4

3. Election Commission of India v. MR Vijaya Bhaskar (LL 2021 SC 244)

The Supreme Court held that the real-time reporting of court room proceedings in social
media in social media is not a cause of apprehension but a virtual extension of the concept of
open court, the Supreme Court held. The Court said that this new-age trend is a "celebration
of our constitutional ethos which bolsters the integrity of the judiciary by focusing on its
functions”. It held that such real-time reporting is an extension of freedom and expression
that media possesses. Social media forums give a wider audience to real-time updates. The
judgement authored by Justice DY Chandrachud acknowledged and addressed that the new
developments in technology are changing the way court proceedings are also getting
reported.5
4
ibid
5
LIVELAW NEWS NETWORK, REAL TIME REPORTING OF COURT HEARING IN SOCIAL MEDIA NOT A
CAUSE OF APPREHENSION; A VIRTUAL EXTENSION OF... LIVELAW.IN (2021), https://www.livelaw.in/top-
stories/real-time-reporting-of-court-hearing-in-social-media-not-a-cause-of-apprehension-open-court-supreme-
The judgement also referred to the fact that the courts in many foreign countries are live-
streaming their proceedings. Even it was said by the Gujarat High Court has started to live-
stream its hearing on YouTube. The Supreme Court said that the prayer of ECI to restrain
media coverage of court hearings strikes at two fundamental principles guaranteed under the
Constitution- open court proceedings; the fundamental right to freedom of speech and
expression. The Court also said there is no question of expunging the oral remarks of the
High Court as they were not a part of the judicial record.6

4. Navetej Singh Johar v. Union of India (2018 10 SCC 10)

In this landmark judgement it was held that If one party chooses sex with people of the same
gender, it is their choice; if that sexual involvement is voluntary and does not affect the other,
then intrusion into these matters is a violation of Article-21. The court referred to Article 12
of Universal Declaration of Human Rights, Article 17 of the international covenant of civil
and political rights and the European Convention on Human Rights.7

Another freedom recognised under Article 21 of the Indian Constitution is the right to live
with dignity, which is violated by section-377, which criminalises a person's identity
depending on his or her sexuality. Homosexuals and transsexual people make up a sizable
portion of the population, and section-377 condemns them. The LGBT group is required to
conform to society's expectations and is subjected to abuse, exploitation, brutality, and
humiliation. Several countries including the US, England, Australia and Canada have
decriminalized consensual sodomy and unnatural acts.8

In its 142nd survey, the Law Commission has stated that section-377 should be repealed.
According to their paper, section-377 was intended to criminalise non-consensual sex and
child violence, but now that sections 375 to 376E have been added to the IPC, section-377 is
no longer essential. Section-377 also targets a specific group of people, i.e., LGBT
discriminates against them based on their ethnicity and sexual orientation, which is unjust and
unconstitutional under Article 14 of the Indian Constitution. The court also ruled that sexual

court-173728?infinitescroll=1 (last visited May 15, 2021).

6
ibid
7
Devika Sharma, FINAL JUDGMENT| GENDER IDENTITY AND SELF-EXPRESSION BASIC TO HUMAN DIGNITY;
SECTION 377 UNCONSTITUTIONAL INSOFAR IT PENALISES CONSENSUAL SEXUAL ACTS BETWEEN ADULTS IN
PRIVATE : SC | SCC BLOG SCC BLOG (2018), https://www.scconline.com/blog/post/2018/09/06/gender-
identity-and-self-expression-basic-to-human-dignity-article-377-unconstitutional-in-so-far-it-penalises-
consensual-sexual-acts-between-adults-in-private-sc/ (last visited May 15, 2021).
8
ibid
orientation is a ground similar to sex, and that discrimination on the grounds of sexual
orientation is prohibited under Article 15(2) of the Indian Constitution. The court ruled that
section-377 is illegal because it contradicts our Constitution's Articles 21, 14, and 15.
Furthermore, section-377 will remain in effect in cases of non-consensual penile non-vaginal
sex and penile non-vaginal sex involving children (those under the age of 18). The Supreme
Court declared that section-377 is unconstitutional as it violates Articles 14, 15, 19 and 21 of
the Indian Constitution and therefore overruled the judgment given in Suresh Koushal and
ors. vs. Naz Foundation and ors. Moreover, it also declared that section-377 will be
governing only non-consensual sexual acts committed against any adult and minor. 9

5. Joseph Shine v. Union of India ((2019) 3 SCC 39)

The 5-Judge Constitution Bench has held section 497 IPC and Section 198 (2) CrPC to be
unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. CJ Dipak
Misra 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. Before the Supreme court, in the writ petition, was the constitutional
validity of Section 497 IPC which criminalizes adultery and Section 198 (2) CrPC which
provides for offences against marriages. Petitioner submitted that the provision by its very
nature is arbitrary and invited the frown of Article 14 of the constitution.10

Dr. DY Chandrachud, J. referred to a foreign judgements and distinguished authors. Sections

497 IPC is destructive of and deprives a woman of her agency, autonomy and dignity. If the
law's stated goal is to secure the "institution of marriage," there is no reason for denying a
woman's agency if her partner is involved in a romantic relationship outside of marriage. She
has no right to sue, nor does the fact that she is married to a man have any bearing on the
elements of the crime. The legislation also takes away the agency of a married woman who
has had a sexual act with another man. Her husband treats her as if she were his property. As

9
mirzawardahbeg, NAVTEJ SINGH JOHAR V. UNION OF INDIA JUDGEMENT ANALYSIS-
IPLEADERS IPLEADERS (2019), https://blog.ipleaders.in/navtej-singh-johar-v-uoi-judgment-which-
decriminalized-homosexuality/ (last visited May 15, 2021).

10
Devika Sharma, SECTION 497 IPC AND SECTION 198(2) CRPC UNCONSTITUTIONAL; ADULTERY NO MORE AN
OFFENCE : SC | SCC BLOG SCC BLOG (2018), https://www.scconline.com/blog/post/2018/09/27/section-497-
ipc-and-section-198-crpc-unconstitutional-adultery-no-more-an-offence-sc/ (last visited May 15, 2021).

‌
a result, if her husband consented to her intimate relationship outside of marriage, there will
be no charge of adultery. Worse still, if the woman's husband colludes with the male with
whom she has had intimate relations, the statute will blink. Section 497 is based around the
idea that a woman sacrifices her voice, power, and agency as she enters into a marriage. The
provision is rife with manifest arbitrariness. Worse still, if the spouse of the woman were to
connive with the person with whom she has engaged in sexual intercourse, the law would
blink. Section 497 is thus founded on the notion that a woman by entering upon marriage
loses, so to speak, her voice, autonomy and agency. manifest arbitrariness is writ large on the
provision.11

11
Devika Sharma, SECTION 497 IPC AND SECTION 198(2) CRPC UNCONSTITUTIONAL; ADULTERY NO MORE AN
OFFENCE : SC | SCC BLOG SCC BLOG (2018), https://www.scconline.com/blog/post/2018/09/27/section-497-
ipc-and-section-198-crpc-unconstitutional-adultery-no-more-an-offence-sc/ (last visited May 15, 2021).

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 Bibliography

 https://www.scconline.com/blog/post/2020/02/17/grant-permanent-commission-to-all-
women-officers-in-army-who-opt-for-it-within-3-months-sc-to-centre/ SCC Online
 https://www.scconline.com/blog/post/2020/11/03/two-men-cleared-of-murder-walk-
free-after-12-years-in-prison-as-sc-holds-that-conviction-cannot-be-based-solely-on-
refusal-to-undergo-a-test-identification-parade/ SCC Online
 https://www.livelaw.in/top-stories/real-time-reporting-of-court-hearing-in-social-
media-not-a-cause-of-apprehension-open-court-supreme-court-173728?
infinitescroll=1 Live Law
 https://www.scconline.com/blog/post/2018/09/06/gender-identity-and-self-
expression-basic-to-human-dignity-article-377-unconstitutional-in-so-far-it-penalises-
consensual-sexual-acts-between-adults-in-private-sc/ SCC Online
 https://www.scconline.com/blog/post/2018/09/27/section-497-ipc-and-section-198-
crpc-unconstitutional-adultery-no-more-an-offence-sc/ SCC Online
 https://blog.ipleaders.in/case-analysis-joseph-shine-v-union-india/ iPleaders
 https://blog.ipleaders.in/navtej-singh-johar-v-uoi-judgment-which-decriminalized-
homosexuality/ iPleaders