Opinion Why the tenure of D Y Chandrachud as Chief Justice of India is reason to hope
Tahir Mahmood writes: In several judgments, he has upheld the primacy of citizens’ fundamental rights
Supreme Court judge Justice D Y Chandrachud. (Express Archive) It is the “worst way” to spend one’s birthday, said a lawyer to a vacation judge of the apex court after an all-day hearing of an urgent bail matter. “No, this is actually the best way to spend it, I am in court judging and it is my life, I love it,” replied the judge. This dialogue took place in mid-November 2020 and the judge who had so responded to the counsel wishing him for his birthday was Dhananjaya Chandrachud. He is slated to be sworn in as the 50th Chief Justice of India around the same time this year.
I have known Dhananjaya for over four decades, since his student days at Delhi University’s Faculty of Law which I joined as a young teacher in 1974. With his learned father, the Chief Justice of the time, the late Y V Chandrachud, I was in touch since 1980 when he sent me an inspiring message for my newly launched journal of Islamic law. Just before demitting office in 1985, he had honoured me by citing two of my works in his celebrated judgment in the renowned Shah Bano case on divorced Muslim women’s maintenance rights. With these personal associations in the background, I keenly watched Dhananjaya’s phenomenal rise through higher legal education at the prestigious Harvard Law School in the US, followed by vibrant days of practice at the Bombay Bar, and eventual assumption of the mantle of a judge. After initially serving on the Bombay High Court bench he took over as the Chief Justice of my state, Uttar Pradesh, and was eventually elevated to the country’s highest temple of justice.
Dhananjaya has now been in the apex court for over six years, charming people with his debonair disposition and impressing the legal fraternity with exceptional jurisprudential acumen. Remarkably, in some important cases, he has overruled a couple of the apex court’s old decisions, which his late father had either personally written or endorsed as a member of a larger bench deciding the case. The first of these was the infamous Habeas Corpus case (ADM Jabalpur, 1976) of the notorious Emergency days decided by a Constitution Bench of the court, with the majority decision in which his father had concurred. On becoming the 16th CJI two years later, he had done his best to wash away the blemish by pronouncing a commendably liberal ruling in Minerva Mills (1980) on the inviolable basic structure of the Constitution. After retiring from the court he had once frankly acknowledged, in an academic event where I was present that the decision in ADM Jabalpur was conspicuously wrong.
Nearly half a century after it was pronounced, ADM Jabalpur was deservedly overruled. Expressing his views on it in the K S Puttaswamy case of 2017 relating to people’s fundamental right to privacy, Dhananjaya Chandrachud called it a “seriously flawed” verdict, adding that “when histories of nations are written and critiqued, there are judicial decisions at the forefront to liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.”
Next year in 2018, Dhananjaya pronounced revolutionary decisions on two different provisions of the Indian Penal Code relating to sexual offences. In Joseph Shine, he dissented from his learned father’s 33-year-old verdict on the constitutional validity of Section 497 of the Indian Penal Code relating to adultery (Sowmithri, 1985). The son’s judgment overruling the father’s on this issue reflected the proverbial generation gap. Dhananjaya’s viewpoint that adultery by a married woman, being an issue of family law, should not fall in the domain of criminal law was abundantly logical. The other case was Navtej Johar in which the court, forsaking its earlier stand on the issue involved, had agreed to the attempted decriminalisation of homosexuality. In his concurring judgment, Dhananjaya held that the related provision of the Penal Code (Section 377) was an “anachronistic colonial law”, which violated people’s fundamental rights to life and privacy.
Also in 2018, Dhananjaya had a chance to express his views on individuals’ freedom of marital choice. In the Shafin Jahan case from Kerala, decided by the apex court going against its initial response, he referred to the law on matrimonial remedies and said: “These remedies are available to the parties to a marriage, for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.”
And then came Dhananjaya’s decision in the Rahna Jala case of 2020 under the Muslim Women (Protection of Rights on Marriage) Act 2019, which had been passed in response to the apex court’s views in Shayara Bano (2017) on the horrendous practice of what is commonly known among the Muslims as triple talaq. Overruling a Kerala High Court decision that anticipatory bail was not available to a husband accused of the offence under the Act, he held that “the power of the court to grant bail is a recognition of presumption of innocence and of the value of personal liberty in all cases” and the 2019 Act does not override the CrPC provision for anticipatory bail.
In the case referred to above, incidentally also a bail matter, Dhananjaya had cautioned the custodians of State authority that if they “target individual citizens they must realise that the apex court is here to protect them”. This enthusiastic commitment of the incoming CJI to the primacy of citizens’ fundamental rights carries a ray of hope for all justice-seekers, now and in future.
The writer is former chair, National Minorities Commission
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