Chief Justice DY Chandrachud — A contested legacy

Chandrachud’s handling of the collegium is something that will surely stick to his legacy.

The tenure of the 50th and current Chief Justice of India (CJI) Dhananjaya Y Chandrachud ends today. His two-year tenure witnessed many changes—from the ‘lady justice’ assuming a new avatar to a major shift in ‘popular opinion’ about him. At the end of his career, the judge who was known and admired for his ‘dissents’ in many important cases was targeted for being too ‘accommodative’ of the views and concerns of those in power.

How and why this shift took place is a commentary on what to expect and what not to expect from the judges of the apex court whom Constituent Assembly member  Mahavir Tyagi equated with God.

Power of dissents

When Justice Chandrachud assumed the office of CJI in November 2022 he was known for his judgment in Justice KS Puttaswamy Vs Union of India, popularly known as the ‘Right to Privacy ’ case. In this case, along with eight other judges of the Supreme Court, he unanimously held ‘privacy’ as a constitutionally protected right “which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.”

He was known as the sole dissenting voice in Aadhaar Case wherein he stated, “Passing Aadhaar Act as money bill is a fraud on the constitution”. The import of his dissent can be gauged from the fact that it influenced the Jamaican Supreme Court to strike down a similar National Biometric Identification System.

In his book ‘Discordant Notes: The Voice Of Dissent In The Last Court Of Resort’, former Supreme Court judge Rohinton Fali Nariman lists Justice Chandrachud’s dissent among the important dissenting judgments of the apex court.

In an extremely controversial and politically charged Bhima Koregaon case, Justice Chandrachud expressed a strong dissenting opinion and held that the arrests of five activists were wholly baseless and politically motivated.

Expanding the scope of fundamental rights

His separate concurring judgment in the case that decriminalised Section 377 of the erstwhile Indian Penal Code (IPC) got him accolades. He was part of the majority that ruled against barring the entry of menstruating women into Sabarimala Temple. In the X vs The Principal Secretary, Health and Family Welfare Department & Another, Chandrachud held that single women who were 20 to 24 weeks pregnant had the same right to safe abortion as their married counterparts.

His ‘progressive’ outlook was further cemented by his verdict in the Shafin Jahan case delivered in 2018, wherein he held that a Hindu woman had the right to convert to Islam and marry the man of her choice.

His judgments and his dissents in important cases significantly enlarged the scope of human and fundamental rights and he was admired for his pathbreaking verdicts. He was lauded by the legal fraternity when he overturned two verdicts by his father and former Chief Justice YV Chandrachud in the ADM Jabalpur and Sowmithri Vishnu cases.

Controversy over bail

However, during his tenure as Chief Justice, the apex court's not-so-liberal approach in granting bail to certain people, especially those charged under the Unlawful Activities (Prevention) Act (UAPA), started attracting criticism. The stay of the post-acquittal release of Delhi University Professor GN Saibaba, who died last month, became a central point of criticism of Chief Justice Chandrachud. Along with Saibaba the denial of bail to student activist Umar Khalid (booked under UAPA) for four years also attracted serious criticism.

Defending himself, he has said, “You have to look at the nature of offence, you have to look at the variety of circumstances when you decide a bail case-prima facie the case made out, is there a likelihood of the trial prolonged indefinitely, is there likelihood of the accused tampering with evidence, and likelihood of the accused not being available to face trial.”

A track record that doesn’t display ideological bias

While the criticism regarding the denial of bail to some of the activists holds some merit, the allegation of ceding ground to the executive in judicial matters seems unwarranted. His detractors forget that as a CJI one of his biggest judgments was in the Electoral Bond case. It was a case of immense political importance and it was the bench led by Justice Chandrachud which struck down the electoral bonds scheme as “unconstitutional and manifestly arbitrary.”

The lead opinion authored by Chief Justice Chandrachud held that the absolute non-disclosure of the source of political funding through electoral bonds promoted corruption, and a culture of quid pro quo with the ruling party to introduce a policy change or for bagging a license.

A careful reading of his judgments, delivered as CJI and before that, as the judge of the Supreme Court shows that they are bereft of any ideological oeuvre. Each case was decided on its merit. Perhaps, it was his earlier judgments and dissents that made a certain section of people believe that he would toe an ideological line. It was a hope that was completely belied. And, it was belied for good, as for the Constitutional court of the country to espouse any ideology is an extremely dangerous proposition.

The two most important cases Chandrachud was part of were the Ram Janmabhoomi-Babri Masjid dispute and the case related to the abrogation of Article 370. Both cases were of immense political importance and had little chance of not being seen through an ideological and political lens. The judgment was bound to attract sharp criticism from the defeated side. And, that is exactly what happened.

Collegium’s functioning is hard to defend

Chandrachud’s handling of the collegium, however, is something that will surely stick to his legacy. And, it will be hard to defend it.

Though Chief Justice Chandrachud categorically stated that Collegium was not a “search committee” whose recommendations lay at the mercy of the discretion of the government, the fact remains that in many cases he did allow the government to have the final word.

The appointment of Advocate Saurabh Kirpal was scuttled. There was a six-month delay on the part of the government to clear the Collegium’s recommendation of Justice Bidyut Ranjan Sarangi as Jharkhand Chief Justice which finally resulted in a tenure of merely 15 days. These are just a few examples to show that the Collegium ceded ground to the Executive on multiple occasions.

More than just his judgements

He will also be remembered for spearheading administrative reforms. From live streaming of court proceedings to the adoption of the National Judicial Data Grid (NJDG) portal, which serves as a national repository for data on cases that are instituted, pending, and disposed of, many praiseworthy initiatives were taken in his tenure. From combating “gender stereotypes” to reforms in the listing process there were many necessary reforms that were put in place.

Chief Justice Chandrachud recently said, “As my tenure is coming to end, my mind has been heavily preoccupied with fears about the future and the past. I find myself pondering over questions such as: Did I achieve everything I set out to do? How will history judge my tenure? Could I have done things differently? What legacy will I leave for future generations of judges and legal professionals”?

The Supreme Court is the bulwark created to guard people against the arbitrariness of the State. Whether Chief Justice Chandrachud was on the side of justice or power is something that cannot be conclusively answered now as legacies are best judged by history.