DY Chandrachud Is Next CJI: Here's What We Can Expect From His Tenure
Justice Chandrachud has upheld the constitutional rights of citizens and batted for inclusivity through many of his judgments as a judge.
President Draupadi Murmu on Monday notified the appointment of Justice Dhananjaya Yeshwant Chandrachud as the 50th Chief Justice of India (CJI). The CJI-designate will take oath on November 9, beginning his tenure of two years and two days.
The warrant of the appointment comes a week after incumbent CJI UU Lalit on October 11 recommended Justice Chandrachud, Supreme Court's senior-most judge as his successor.
Justice Chandrachud or 'DYC' as he is popularly known in legal circles will create history as the first father-son duo to become the top judge of this country. Chandrachud Jr will sit on the same seat as his father, ex-CJI YV Chandrachud, did 37 years ago. Chandrachud Sr held the position for seven years and four months thus becoming the longest-serving CJI in Supreme Court history.
In March 2000, Justice Chandrachud was appointed a judge of the Bombay High Court. Thirteen years later, he was elevated as chief justice of Allahabad High Court—the largest high court in this country. Three years later, in 2016 Justice Chandrachud was appointed as a Supreme Court judge.
From judge to CJI
In his 22 years as a judge, Justice Chandrachud has already delivered landmark decisions that have had far-reaching impacts. He has created rights where none previously existed and championed issues relating to social causes, privacy, and free speech. Alok Prasanna, co-founder of Vidhi Centre for Legal Policy told BOOM, "A lot of the praise and brickbats he has received have been for his judgments only. As CJI, he will now be judged on a different set of challenges."
As a liberal and a feminist, Justice Chandrachud's views on constitutional rights for women, people with disabilities and the gay community are well known. His opinions on privacy rights are oft quoted.
However, till now, Justice Chandrachud was judged on his judgments. Prasanna said that as a CJI, the expectations will be different as the "nature of the role changes completely once a judge becomes a Chief Justice".
"As a puisne (junior) judge, your job is more to listen to cases and give judgments. One can maybe take on some administrative work. But as a Chief Justice, your job is now allocating those cases, your job is now running the administration of the court, and your job is now worrying about the appointment of judges—not only to the supreme court but the high courts as well. Your job gets a lot more complicated, and this is perhaps where we are looking forward to Justice Chandrachud as the Chief Justice," Prasanna added.
Expectations versus reality
Opinions are divided on what one can expect from the new CJI and whether they can actually bring about a change in the systems.
"A CJI has a huge burden to bear. On one side they have to balance the Executive and on the other side they have a constitutional mandate," legal scholar Professor Upendra Baxi told BOOM. "People have huge expectations, but they don't realise time is of the essence. Only the determined CJIs find the time to make substantive changes," he added.
Article 124 of the Indian Constitution caps the retirement age of Supreme Court judges at 65 years. A CJI's tenure begins from the time he assumes office. Data over the years have suggested that the average tenure of a CJI is 1.5 years. So, at two years and two days, Justice Chandrachud will have one of the longest tenures in recent times since ex-CJIs KG Balakrishnan (3.25 years) and SH Kapadia (2.33 years).
In recent times, since ex-CJI TS Thakur until CJI Lalit took over, almost all the CJIs have been a "disappointment" in terms of meeting expectations. And each of them has given a different cause for it, several members of the bar pointed out.
Justice Chandrachud has the largest shoes to fill after CJI Lalit, a senior advocate said. CJI Lalit did not have enough time, this is not an excuse Justice Chandrachud can give, observed another.
There are others who are confident that Justice Chandrachud will meet all expectations.
"Justice Chandrachud loves the law, and he appreciates the change the law can bring. He has the vision about the architecture of court and potential of law to bring change," senior advocate Menaka Guruswamy said.
Several members of the bar also observed that Justice Chandrachud's judgments—forward thinking and liberal as they may be—are more academically inclined, "aimed towards a select audience". Justice Chandrachud's judgments do not necessarily address the nitty-gritty at the level of a common man, many pointed out.
Senior advocate Pramod Kumar Dubey said Justice Chandrachud has strengthened law relating to rights for humans. He hoped Justice Chandrachud's stewardship of the judiciary would strengthen judicial infrastructure and allow the rule of law to reach the poorest sections of society.
A wishlist for the new CJI
The three major tasks that await Justice Chandrachud as CJI are — the appointment of judges, listing of cases before benches master of the roster, and bringing in transparency through live streaming of court proceedings, something he has advocated for.
In recent times, the appointment of judges has been one of the greatest sources of friction between the Executive and the Judiciary.
During his tenure, Justice Chandrachud will have the tall order to fulfill on vacancies in the judiciary. During his two-year tenure, 13 Supreme Court judges (2023 – 9, 2024 – 4) and 305 high court judges (2023 – 167, 2024 – 138) will retire. This is over and above the vacancies that are already pending. According to data, high courts are short of 772 judges as of October 1 and Justice Chandrachud will assume office on November 9 with seven judges short of the sanctioned strength - six if the Centre accepts the collegium's recommendation and elevates Bombay High Court Chief Justice Dipankar Dutta to the top court.
Going forward, senior advocate Vikas Singh said he hoped for more regional representation in the Supreme Court and as the president of the Supreme Court Bar Association (SCBA), he will petition the new CJI to consider supreme court advocates for appointment as high court judges.
Across the bar, there is a unanimous call for a "clean system" along with transparency in the listing of cases. "I have a strong feeling of disappointment that in the last few years after CJI Thakur, successive CJIs have listed politically sensitive matters before select benches," senior advocate Dushyant Dave told BOOM. Dave further wondered whether Justice Chandrachud as CJI would be "a citizens' judge or an establishment judge".
The academic lawyer and a judge
Justice Chandrachud was born on November 10, 1959, to a former chief justice of India and a classical singer. Justice Chandrachud did his BA with Honours in Economics from St Stephen's College, LLB from Campus Law Centre, Delhi University, and obtained his LLM degree and a Doctorate in Juridical Sciences (SJD) from Harvard Law School, USA.
As an advocate, Justice Chandrachud significantly worked across a board of cases that involved constitutional and administrative law, the rights of HIV+ workers, and religious and linguistic minority rights among others. Justice Chandrachud's passion to speak for the oppressed spilled over when he shifted from the bar to the bench.
Making constitutional rights inclusive
Justice Chandrachud's opinions in judgments—whether concurring or dissenting, are a window to his passion for upholding constitutional rights. His opinions not only changed the course of history, especially with regard to LGBTQIA+ rights but he also course-corrected judgments authored by his father ex-CJI YV Chandrachud.
"Deprivation of liberty even for a single day is one day too many," he wrote while speaking about the plight of undertrials languishing in jails. "Life and personal liberty are not creations of the Constitution. These rights are recognized by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within," he observed in the landmark 2017 KS Puttaswamy privacy judgment.
In the judgment decriminalising gay sex, Justice Chandrachud's recognition of the right to privacy as a fundamental right became a game-changer with effects that rippled far and wide across the proverbial pond of constitutional rights.
In 2018, a bench comprising Justice Chandrachud was hearing an appeal against a Kerala High Court order in an alleged case of "love jihad" where Shafin Jahan's marriage with Hadiya was annulled after she converted to Islam. "When two freely consenting adults have decided to get married, can the court go into the rightness or correctness of the partner or the justness of marriage?" he said in the Hadiya matter as it came to be known.
More recently, in line with his practice of expanding constitutional rights, a judgment authored by Justice Chandrachud clarified that by referring to "woman", the court was also including persons other than cis-gender women who may require access to abortion services.
Justice Chandrachud's judgment granting women abortion rights up to 24 weeks of their pregnancy irrespective of their marital status was a landmark in its own way; but by this admission, the top court recognised all those who identify with a gender of their choice and are not restricted to an identity assigned to them at birth. In this judgment, he also recognised that married women can also be survivors of sexual assault and allowed them to terminate pregnancies arising out of marital rape.
Rights to free speech, personal liberty and the digital revolution
Justice Chandrachud has been a staunch defender of free speech and personal liberty. Republic's Arnab Goswami and Alt News' Mohammed Zubair both got bail from benches headed by him.
"Courts cannot restrain the media from reporting court proceedings," Justice Chandrachud had said while dismissing a plea filed by the Election Commission seeking a media gag on oral observations made in court.
"It is essential to hold the judiciary accountable," he had said.
As the chairperson of the E-Committee, Justice Chandrachud spearheaded the Supreme Court's efforts to embrace technology and digitally revolutionised judicial proceedings—especially during the pandemic brought on by COVID-19. Justice Chandrachud declared his bench would be "paperless" and urged all those arguing before him to go green and was also instrumental in encouraging and making live-stream court proceedings a reality.
"Citizens have a right to know about and to follow court proceedings. It will sub-serve the cause of access to justice," he had observed.
Overturning father's judgments
When Justice Chandrachud became a Supreme Court judge in 2016 he told the Times of India that he thought of his father with reverence and it was hugely satisfying to tread in his footsteps. He has also credited his father for teaching him that "law should have a human face".
However, this reverence did not stop Chandrachud Jr from calling out not one, but two of his father's judgments and overturning them decades later.
In the 2017 KS Puttaswamy judgment granting people the right to privacy, Justice Chandrachud said the majority verdict by all four judges in the historic 1976 ADM Jabalpur judgment—more popularly known as the 'Habeas Corpus'—was "seriously flawed" before overruling it. Ex-CJI Chandrachud was part of the majority that suspended civil rights during the Emergency in 1975.
In 1985, Chandrachud Sr upheld the constitutional validity of Section 497 which criminalised adultery. In the Sowmithri Vishnu judgment, Justice YV Chandrachud had written, "It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the transformation which society has undergone".
In 2018, 33 years later, his son in the Joseph Shine judgment overturned it saying it was not relevant to recent times. "The law in adultery is a codified rule of patriarchy," Justice Chandrachud observed and concluded by saying, "Respect for sexual autonomy must be emphasized. Marriage does not preserve the ceiling of autonomy. Section 497 perpetrates subordinate nature of woman in a marriage."
Are some more equal than others?
In granting bail to Republic Editor-in-Chief Arnab Goswami, Justice Chandrachud may have followed his constitutional values but the same invited intense criticism. In 2020, Goswami sought bail during the court's Diwali break. A vacation bench comprising Justices Chandrachud and (now retired) Indira Banerjee heard the matter a day after the plea was filed.
Stand-up comic Kunal Kamra tweeted: "DY Chandrachud is a flight attendant serving champagne to first-class passengers after they're fast-tracked through, while commoners don't know if they'll ever be boarded or seated, let alone served. *Justice*"
The quote from George Orwell's Animal Farm – "All Animals Are Equal, But Some Are More Equal Than Others", found new context.
His more recent judgment expanding abortion rights and allowing married women to terminate pregnancies arising out of marital rape was also derided by men's rights activists.
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