When Chief Justice of India DY Chandrachud retires in November, he will leave behind one of the most consequential, complicated, and confounding legacies in the Supreme Court’s history.
Over eight years as a Supreme Court judge and 2 years as CJI, he has delivered some of India’s most important judgments. You can tell a Chandrachud verdict from others just by looking at it: the careful structuring, the neat laying out of conclusions, the high-minded rhetoric, and the use of foreign judgments. These features are so specific to his rulings that he was easily identifiable as the author of the Ayodhya judgment even when it did not specifically cite him as one.
Making sense of the CJI’s legacy through his landmark verdicts isn’t easy, which is why I have split them into three broad categories. The first category includes a judgment where the rhetoric matched the impact. The second category talks about a ruling where the rhetoric was high-minded but the impact minimal. And the third category details a decision where the impact was the exact opposite of the rhetoric.
Category 1: Revolutionising constitutional jurisprudence
Justice Chandrachud has had an enormous impact on constitutional jurisprudence in India, particularly in three areas: the right to privacy, reservation, and free speech. He has changed the way Indian courts think about these issues. While other judges on the bench have also written judgments in these cases, it is Chandrachud’s opinion (much like Justice Krishna Iyer’s from ages past), that has been frequently highlighted as the opinion of the Supreme Court.
A great example of this is the nine-judge bench decision in Justice (Retd) KS Puttaswamy’s case, which established the right to privacy as a fundamental right in India. The 2017 verdict, where Chandrachud wrote the lead opinion, defined privacy in broad but clear terms – something that significantly impacted different areas of the law and will continue to do so. Ironically, the following year in 2018, when the constitutionality of the Aadhaar Act was upheld by the SC, Chandrachud found himself in the minority, dissenting against the majority decision to support the law. Even then, the bench drew upon his 2017 judgment while largely upholding and partially striking down parts of the Aadhaar Act.
The Puttaswamy verdict also provided a new and enduring basis for striking down Section 377 of the Indian Penal Code in Navtej Johar’s case. However, the hopes of the LGBTQIA community in India about the impact of the Puttaswamy judgment were belied in the marriage equality case (Supriyo vs Union of India), which brings us to the second category of Chandrachud rulings.
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Category 2: High rhetoric, low impact
The speed and efficiency with which CJI Chandrachud announced the formation of a Constitution Bench in the marriage equality case led many to expect that the outcome was a foregone conclusion. Except, this is not what happened.
Chandrachud’s minority opinion in Supriyo’s case covered everything from the history of queerness in India, the institution of marriage to the rights of queer people to adopt and many other crucial issues. It was marked by a deep understanding of the topic, from its philosophy to history. In the end, however, it acknowledged (like the majority opinion authored by Justice Ravindra Bhat) that there was no constitutional right to marry in India, leaving it to the legislature to grant these rights by law. While Chandrachud’s minority opinion tried to create some space for queer couples to legally adopt children, he was unable to persuade his fellow judges even on this.
Supriyo is not the only instance of Chandrachud’s soaring rhetoric giving little by way of succour to the actual litigants in the case. To this list, I could add the abortion judgment and the recent child marriage verdict.
This category of judgments, while disappointing, is not like the next category – where Justice Chandrachud hid behind his rhetoric to enable actively harmful outcomes.
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Category 3: Rhetoric as cover for constitutional sins
No case illustrates this category of judgments better than the Ayodhya verdict. Here too, Chandrachud struck all the high notes – secularism, how tragic it was that the Babri Masjid was demolished, et al. He wanted people to believe that this was just another civil suit that the SC was deciding, and that it just so happened that the Hindu community had a stronger legal claim to the land. One has to sift through the dense obfuscation of the judgment to get to the heart of how the SC decided this case – Hindus have an inherent right to the land, and Muslims have to show how they got it.
The Article 370 judgment also shows how rhetoric can be deployed to cover up outcomes favouring the ruling dispensation, though in a slightly different manner. In this case, the rhetoric of integration was used to give legitimacy to a legally and constitutionally illegitimate way of undoing Jammu and Kashmir’s special status. Conversely, while the rhetoric of federalism was deployed, the judgment didn’t address at all how a state could be downgraded to a Union Territory by the Union Parliament.
The first category of Chandrachud judgments will certainly help develop constitutional and human rights laws in the future. The second and third categories – even if they don’t get cited and don’t lead to further legal developments – will also define his legacy. There is perhaps no pithy summation here of the CJI’s judicial legacy except to say that it will always be consequential, complicated, and confounding.
Alok Prasanna Kumar is co-founder of the Vidhi Centre for Legal Policy. Views are personal.
(Edited by Zoya Bhatti)