Section 377, Abortion, Sabarimala: Key Feminist Verdicts of Next CJI Chandrachud

Justice Chandrachud's 181-page order on decriminalising homosexuality was the longest among his peers on the bench.

5 min read

(This story was originally published on 17 October 2022. It has been republished from The Quint's archives to mark Justice DY Chandrachud taking his oath as the 50th Chief Justice of India on 9 November.)

President of India Droupadi Murmu on Monday, 17 October, appointed Justice Dhananjaya Yeshwant Chandrachud as the next chief justice of India, giving Indian feminists reason to celebrate.

Chandrachud, who is set to become to 50th CJI of India after his the incumbent UU Lalit retires on 8 November, has delivered a myriad of progressive judgments in his tenure and is hailed as a champion of liberal values in the judiciary.

From reading down of Section 377, which criminalised homosexuality in India, extension of abortion rights to unmarried women, to the landmark Sabarimala Temple case, here's a glimpse at some of the watershed feminist verdicts pronounced by Justice Chandrachud.


'What Is the Order of Nature?': Striking Down Article 377

Justice DY Chandrachud was part of the five-judge bench of the Supreme Court which, on 6 September 2018, partially struck down the British-era law which criminalised consensual homosexual sex in India. His 181-page order was the longest among his peers on the bench.

"Section 377, to the extent it criminalises sexual acts between consenting adults, whether homosexual or heterosexual, is unconstitutional," the order notes.

Quoting from Leonard Cohen's song 'Ashes Of The Gay', Justice Chandrachud observed that sexual and gender-based minorities cannot live in fear, if the Constitution has to have meaning for them on even terms.

"What is the 'order of nature'? State cannot decide the boundaries between what is permissible or not. Section 377 is based on deep-rooted gender stereotypes. It persecutes people. It is a majoritarian impulse to subjugate a sexual minority to live in silence," his judgment had said.

"Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life," Chandrachud had noted.

'Law Should Not Be Based on Patriarchal Principles': On Abortion Rights for Unmarried Women

Chandrachud has also been hailed for his pro-women, pro-choice stand on abortion.

On 29 September, an apex court bench presided over by Justice DY Chandrachud passed a judgment extending the benefits of the Medical Termination of Pregnancy Act, 1971 (MTP Act) to unmarried/single women.

“The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes permissible sex. This would create invidious classifications,” Justice Chandrachud said in the judgment delivered on International Safe Abortion Day.

A remark made by the justice in the judgment also recognised marital rape as an offence.

“Married women may also form part of survivors of sexual assault or rape. A woman may become pregnant due to a non-consensual act by the husband. Sex and gender-based violence in all its form has been part of families,” he had noted.

This observation comes against the backdrop of Delhi high court’s split verdict on the issue of criminalisation of marital rape.


'A Form of Untouchability': Removing Restrictions on Women Entering Sabarimala Temple

In a welcome decision against the continuance of patriarchal religious practices, the Supreme Court in September 2018 had removed all restrictions imposed on the entry of women of menstruating age at the Sabarimala Temple.

Justice Chandrachud, who was part of the five-judge bench which pronounced the judgment, opined that the practice to ban entry to women between the ages of ten and fifty at the Ayyappa temple at Sabarimala was "a form of untouchability."

"Religion cannot be a cover to deny women the right to worship. To treat women as children of a lesser god is to blink at consitutional morality."
Justice DY Chandrachud

A year after the verdict, Chandrachud had revealed in an interview with The Economic Times that he had received threats on social media over the apex court's decision.

“The practice of keeping out women was tantamount to untouchability, and a travesty to their constitutional rights which guarantee the right to freedom of worship,” he had said in the interview.


'Adultery Law Strips Women of Sexual Autonomy': Overturning a Judgment Made by His Father

The colonial-era law criminalising adultery strips women of their "sexual autonomy" and treats them as a "chattel" of their husbands, a five-judge constitution bench had ruled in September 2018.

Justice DY Chandrachud was part of the panel of judges who had unanimously struck down Section 497 of the Indian Penal Code (IPC) dealing with adultery, which deemed a man who has consensual intercourse with the wife of another man as guilty of the legal offence.

Emphasising on women's agency, the verdict stated, "Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence."

"The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster."
Justice DY Chandrachud

He had noted in his 77-page long judgment that a "woman's 'purity' and a man's marital 'entitlement' to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognised as being so today."

The decision of the court overturned the 1985 judgment of Chandrachud's father, former Chief Justice of India YV Chandrachud, which had upheld the validity of adultery law.

“We must make our judgments relevant to the present day," the junior Chandrachud had remarked in 2018.


'Women Can Sail With the Same Efficiency': On Permanent Commission of Women in Army & Navy

In 2020, a two-judge bench of the Supreme Court, led by Justice DY Chandrachud, had dismissed the Union government’s submissions that women are physiologically weaker than men and declared that Short Service Commission (SSC) women officers are eligible for permanent commission and command posts in the army.

"The battle for gender equality is about confronting the battles of the mind. In the context of the Armed Forces, specious reasons have been advanced by decision makers and administrators. They range from physiology, motherhood and physical attributes to the male dominated hierarchies,” Justice Chandrachud had observed in a 64-page judgment.

In a similar case later in 2020, concerning permanent commission for women naval officers, Justice Chandrachud said there was no reason to discriminate as “women can sail with the same efficiency as men.”

The same two-judge bench upheld a 2015 verdict of the Delhi High Court and ruled that there cannot be gender discrimination while granting permanent commission to women officers in the Indian Navy.

“To contend that women officers are ill-suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation,” the bench had held.


'To Lead Her Life Exactly as She Pleases': Justice Chandrachud on Hadiya Case

The Supreme Court in 2018 had set aside a Kerala High Court order annulling the marriage of Hadiya to Shafin Jahan, whom she had married after converting to Islam.

The 24-year-old woman, who converted to Islam before marrying him and changed her name from Akhila to Hadiya, was placed in her father’s custody by the high court after he said he feared for her well-being.

Setting aside the high court's order, the Supreme Court bench of which Justice Chandrachud was part had ruled:

"The High Court was of the view that at twenty-four, Hadiya “is weak and vulnerable, capable of being exploited in many ways”. The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases."
Justice DY Chandrachud

“The moment you allow public law (law of relations between individuals and the State) to encroach into marriage, you are letting the state interfere in individual choices of a citizen,” Justice Chandrachud had said.

He asserted that a “marriage between two consenting adults is still a valid marriage” even if a reasonable number of persons happen to disagree with the wedlock.

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