In a lecture delivered at the Gujarat High Court in February 2020, DY Chandrachud, India's new chief justice, called dissent the “safety valve of the democracy” and added:
“A legitimate government committed to deliberate dialogue does not seek to restrict political contestation but welcomes it.”
“A state committed to the rule of law ensures that the state apparatus is not employed to curb legitimate and peaceful protest but to create spaces conducive for deliberation.”Justice DY Chandrachud
And he meant it.
'STAUNCH PROPONENT OF FREEDOM OF MEDIA...'
In November that year, granting bail to TV news editor Arnab Goswami, Justice Chandrachud said:
“India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal”.
Earlier this year, after several courts in this country had turned their back towards journalist Mohammed Zubair, not only did Justice Chandrachud grant him bail, but he also refused to curb his right to free speech.
In March this year, a bench headed by Justice Chandrachud passed an interim order staying the Centre’s decision to revoke the security clearance of Malayalam news channel MediaOne, and allowed the channel to resume broadcast. Through the course of the hearings, the bench also expressed its reservations towards the Centre's employment of the "sealed cover procedure" in this case.
In 2021, dismissing the Election Commission’s plea to restrain the media from reporting the oral observations made against them by Madras High Court, Justice Chandrachud (writing the judgment for the bench) had said:
“This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution”.
In his landmark judgment upholding the right to privacy as a fundamental right, Justice Chandrachud also wrote:
"The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government."
WHY THIS MATTERS
In October this year, a Kashmiri journalist, Sanna Irshad Mattoo, who should be celebrated for winning the Pulitzer Price, was stopped from flying to New York to receive the award.
Over the course of the last few years, several Indian reporters — Fahad Shah, Sajad Gul and Siddique Kappan, to name a few — have been arrested in connection with or during the course of their work. They are languishing behind bars over an array of pretexts.
In 2022, India fell to its lowest ever position – 150 out of 180 countries – in the Press Freedom Index (Reporters Without Borders).
On 28 October, Prime Minister Narendra Modi said: “every form of Naxalism, be it the one with guns ("bandook") or the one with pens (kalam), they have to be uprooted,” effectively equating the violent use of arms with disagreeable speech. Only a few days before this, the Solicitor General of India had told the top court that “urban naxals” are seeking house arrest, thereby snatching a term from TV debates and dragging it through the hallowed portals of the apex court. Which act, which code, which section legally defines or penalises “urban naxals” – one doesn’t know so far.
At a time like this Justice DY Chandrachud is taking over as Chief Justice of India, and a lot has to be said about the challenging nature of the job before him. But there's also a lot of anticipation, because his history as an apex court judge is a strong indication of his commitment to free speech, and to values that define a democracy.
LIBERTY, PRIVACY, DIGNITY: JUSTICE CHANDRACHUD'S REPEATED DEFENCE OF FUNDAMENTAL RIGHTS
It is not journalists alone whose fundamental and constitutional rights, Chandrachud has vigorously defended. In his path-breaking judgment decriminalising homosexuality, he noted:
“Human sexuality cannot be reduced to a binary formulation. Nor can it be defined narrowly in terms of its function as a means to procreation. To confine it to closed categories would result in denuding human liberty of its full content as a constitutional right.”
This judgment is iconic not only for its recognition of homosexuality and its dismissal of restrictive binary constructs, but also for the emphasis it lays on rights to privacy, dignity and autonomy.
But one cannot talk about Justice Chandrachud's views on right to privacy without a reference to his landmark judgment in KS Puttaswamy vs Union of India.
In 2017, a nine-judge bench of the Supreme Court unanimously affirmed the right to privacy as a fundamental right. Justice Chandrachud, delivering the main judgment on behalf of (then) CJI JS Khehar, Justices RK Agarwal, S Abdul Nazeer and himself, wrote:
"Life and personal liberty are not creations of the constitution. These rights are recognised by the constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within..."
"Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III."Justice Chandrachud in KS Putuswamy vs Union of India
Not only that, he also overruled a decision taken by his own father (former CJI YV Chandrachud) in the ADM Jabalpur case (which had placed riders and regulations on right to liberty).
In another remarkable intervention, a bench led by Justice Chandrachud refused to be “a silent spectator” in a humanitarian crisis and questioned the government on its COVID vaccine policy in a suo motu case. A few days after the apex court’s criticism, the Union Government made a significant change in its vaccine policy, as PM Modi announced free vaccines for all eligible age groups.
AND HE DISSENTED WHEN NECESSARY...
But it isn't always that Justice Chandrachud's opinion is consistent with other members of the bench.
In September 2018, dissenting with the majority opinion in Romila Thapar vs UOI — a PIL challenging the arrest of five activists in the Bhima Koregaon case and seeking the formulation of a Special Investigation Team (SIT) to probe the matter — Justice Chandrachud held that there did exist a need for the court to appoint an SIT.
“Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in this case acted as a fair and impartial investigating agency," he noted.
Also, in September 2018, when four out of a five-judge bench upheld the constitutional validity of the Aadhaar project, Justice Chandrachud, called the passing of the Aadhaar Act as a money bill, a “fraud on the Constitution.” Article 110 of the constitution places restrictions on what can be defined as a money bill.
Holding that Aadhaar had the potential for surveillance, Justice Chandrachud said:
“Constitutional guarantees cannot be subject to the vicissitudes of technology.”
In a reprise of what happened in September 2018, in January 2021 again Justice Chandrachud dissented against dismissal of review petitions challenging the Aadhaar verdict.
Both these cases are adequate testimony to Justice Chandrachud's ability to not only dissent with other members of the bench, but also to act as a vocal critique of the State when convinced that justice, liberty and constitutionality are in peril.
"Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution," he had further noted in his Bhima Koregaon dissent.
In the Aadhaar case Justice Chandrachud's dissent was crucial because it showed that the law takes privacy seriously and that heightened surveillance is an unfavourable outcome in a democracy. He was also credited with asking critical questions of the government, and condemning the way the law took shape in the parliament (as a money bill).
BUT NOT ALL HITS...
But Justice Chandrachud has also garnered criticism at times, for not being able to adequately take the conversation forward or meet the (undoubtedly) high standards he has set for himself.
Such as when the top court’s judgment (on behalf of CJI Dipak Mishra, Justice AM Khanwilkar and himself) dismissed petitions seeking an independent probe into Judge BH Loya’s death. While the apex court has an unquestionable right to dismiss any petition as it deems fit, the verdict paved way for questions over the court’s complete acceptance, without probe, of the submissions advanced by those who were with Judge Loya in the hours before his death.
Further, Justice Chandrachud’s judgments in the Ayodhya case and the Gyanvapi Mosque matter have also been questioned, with Senior Advocate Dushyant Dave stating in an interview for The Wire that the latter had “opened up a Pandora’s box”.
Note that the apex court had refused to put an end to – or order a firm stay in – the Gyanvapi mosque matter. In stead, they deemed it wiser to just take the matters out of the hands of the civil judge and order that a "senior and experienced" district judge may decide on the maintainability of the petition (under Order 7, Rule 11 of the CPC).
Meanwhile, masjid-mandir disputes, from Gyanvapi to Shahi Idgah to several others, continue unabated in the country and in courts of law, despite the bar by Places of Worship Act on conversion of any place of worship into anything different from its religious character as it was on 15 August 1947 (with the exception of the Ayodhya dispute).
CREDIT WHERE IT'S DUE: FEMINIST, FUTURISTIC & TRANSFORMATIVE VIEWS
Still, none of the above takes away from Justice Chandrachud's ability to create impact through his judgments. Dave himself, despite critiquing Chandrachud on the above matters has called him an “an intellectual giant” with “extraordinary qualities as a judge”.
Justice Chandrachud is also frequently appreciated for his feminist, futuristic and transformative views.
Speaking at an event in National Law University, Delhi, Justice Chandrachud recently asked law graduates to “incorporate feminist thinking" in the way they deal with the law. And he has shown how to do it in a catena of judgments, including but not limited to Navtej Johar (decriminalising homosexuality).
In Young Lawyers Association v. State of Kerala, Justice Chandrachud upheld the right of menstruating women to visit the Sabarimala Temple.
In Joseph Shine vs Union of India he was part of the bench that decriminalised adultery.
On 31 October 2022, a bench of Justices Chandrachud and Hima Kohli held that any person who conducts the “two-finger test” on sexual assault survivors shall be guilty of misconduct, noting poignantly that it is "patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely because she is sexually active"
In September 2022, Justice Chandrachud held that the benefits of the Medical Termination of Pregnancy Act extend to unmarried/single women. Further, in an impactful acknowledgement of marital rape, he noted that for the sole purpose of the Medical Termination of Pregnancy Act, the meaning of rape must include marital rape.
“We would be remiss in not recognising that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex and gender-based violence is a deeply regrettable one.”
This is an especially consequential observation as it comes against the backdrop of Delhi High Court’s split verdict on the issue of criminalisation of marital rape and the Supreme Court’s impending consideration of the challenge to the marital rape exception (under Section 375 of the IPC).
Read more about Justice Chandrachud’s feminist judgments here.
THE CHALLENGES BEFORE THE NEW CJI
Needless to say, Justice Chandrachud has displayed an ability to deliver justice with fairness, objectivity, intellect and commitment to human rights and constitutional values. But it is pertinent to also mention that he takes oath during a challenging period of the Indian democracy.
“So, how will a Chief Justice who advocates transformation of social hierarchies, calls for breaking traditional stereotypes, cherishes personal liberty and values the power of dissent fare in a "new" India, which is seeing the ascendancy of a majoritarian rule buoyed by Hindutva politics, rise of socio-cultural conservatism and resurgence of traditionalism?” wrote LiveLaw’s managing-editor Manu Sebastian in an analysis piece.
As pointed out by Sebastian, the time immediately prior to the announcement of the 50th CJI (and even in its aftermath) was marked by vicious trolling on social media by a particular section of society. A flurry of fake news and angry letters were circulated in a hurried bid to discredit Chandrachud. Some of his observations were also contorted with malicious intent.
But even so, these distortions by "fringe" elements pale before the challenge posed by the executive to the independence of the judiciary.
As further noted by Sebastian, the Centre has been acting “in flagrant disrespect” of judicial precedent and convention by splitting-up collegium resolutions to keep certain recommendations pending and “brazenly ignoring” names suggested by the collegium for elevation/transfer.
Further, Union Law Minister Kiren Rijiju’s criticism of the collegium system, coupled with his observation that “appointing judges is the task of the government” has sparked worry, as the independence of the collegium in appointing judges is crucial to the overall independence of the judiciary. If the task of appointments fell into government hands, one fears the line of distinction between the judiciary and the executive will blur.
How will those chosen by the government, or whose appointment to a higher court is contingent to the executive’s whim, be expected to rule objectively and impartially, especially in matters of political consequence, where the government itself, is often a party?
As Justice Chandrachud takes on the role of Chief Justice of India, and the master of the roster and the head of the collegium, the independence of the judiciary, and with that, the future of democracy, is dependant on him
Some of his predecessors have left behind unfortunate legacies, and some have been unable to do enough despite evident intent due to an array of reasons — but to do poorly or even to not do enough is not a luxury that CJI Chandrachud can afford. His tenure is long, his history is promising and democracy has rarely needed upholstering as urgently as it does today.
In Justice Chandrachud’s own words: “rights in themselves are paper tigers unless they are given teeth by the courts.”
We hope fervently, as we watch with bated breath, that our tongues remain un-snipped, our pens remain un-lidded, our dreams of a democracy remain un-shattered, and Justice Chandrachud continues to safeguard our rights as effectively as he has done thus far. Even as Chief Justice of India. Especially as Chief Justice of India.
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