The Supreme Court's Contentious Jurisprudence Under CJI DY Chandrachud

His judicial record and the philosophy he has espoused inside and outside the courtroom reveal contradictions.

Having built a reputation as a progressive and liberal judge, particularly before his appointment as CJI, court watchers expected his relatively longer tenure, as compared to his immediate predecessors, would make the court more assertive and independent.  

But that was not to be.  

(Photo: Vibhushita Singh/The Quint)

Much has been said about the Indian Supreme Court under CJI DY Chandrachud and its increasingly pliant behaviour, leading to perceptions of it as an illiberal institution.

The court’s legitimisation of the government's actions has been on full display, particularly in politically sensitive cases in which it had the opportunity to serve as a truth-speaking institution. Therefore, Chief Justice Chandrachud's tenure echoes the Indian Supreme Court's long-standing pattern of avoiding confrontation with the political executive.  

A closer examination of his judicial record and the philosophy he has espoused inside and outside the courtroom reveals contradictions.

Having built a reputation as a progressive and liberal judge, particularly before his appointment as CJI, court watchers expected his relatively longer tenure, as compared to his immediate predecessors, would make the court more assertive and independent.  

But that was not to be.  

Justice Chandrachud was appointed to the Supreme Court in 2016 and elevated to the position of Chief Justice in November 2022. Worth noting here is that given his overall long tenure at the court and the legacy he has left behind, he was both an embodiment of promise and a symbol of betrayal.  

In his early years as a judge of the Supreme Court, Justice Chandrachud made significant contributions to the evolving “liberal” constitutional jurisprudence, particularly on issues of privacy, bodily autonomy, affirmative action, and much more. His judgments affirming the right to privacy as part of the right to life and personal liberty under Article 21, decriminalising same-sex relationships, and striking down the law on adultery have received widespread recognition - and rightly so.  

Add to this, his concurring opinion in Shafin Jahan v Ashokan KM (2018) in which he affirmed that an adult’s right to choose a partner or religion falls within the ambit of an individual’s privacy. Although subsequently reversed by Parliament, Justice Chandrachud, both as a judge and later as CJI, was part of the Benches in 2018 and 2023 that ruled the Delhi legislative assembly has full control over services in Delhi and can legislate on all matters in the state list, except for those related to public order, police, and land - the areas explicitly excluded by Article 239AA.  

These contributions along with many others from his time before becoming the CJI painted Justice Chandrachud as a judicial messiah who championed liberal values and demonstrated exceptional efficiency. However, his two-year tenure as Chief Justice has proved otherwise, especially with the court’s handling of politically sensitive cases. The court’s positions on Article 370, the Babri Masjid dispute, and bail have diminished the impact of his previous rulings, making them appear as mere judicial grandstanding, thus overshadowing his earlier standing as a liberal judge. 

CJI Chandrachud’s majority opinion in the Article 370 case (2023) endorsing the central government’s unilateral revocation of Kashmir’s semi-autonomous status is a textbook case of trailing behind the government's actions to justify the President’s arbitrary exercise of executive power.

Effectively, the court ruled that the President of India can abrogate Article 370 even after the dissolution of the “Constituent Assembly” of J&K State - something that formed the bedrock of the special constitutional arrangement between J&K and the Indian Dominion, and recognised under Article 370(3). Holding that J&K did not retain any internal sovereignty after accession, the majority opinion written by Justice Chandrachud held that the special status it enjoyed merely represented a feature of asymmetric federalism.  

Before his tenure as CJI, Justice Chandrachud was a part of the five-judge Bench that decided to allocate the Babri Masjid land to the majority community while granting five acres of land to the Muslim community as a token. Adding to the travesty, the court merely acknowledged the criminal nature of the acts that occurred on 6 December 1992 and that was that.   

While the author of the judgment is still not known, Justice Chandrachud has made a shocking revelation recently, confessing that he prayed to the deity for a resolution to the Ayodhya dispute.

He stated: “Very often we have cases [to adjudicate] but we don't arrive at a solution. Something similar happened during the Ayodhya [Ram Janmabhoomi-Babri Masjid dispute] which was in front of me for three months. I sat before the deity and told him that he needs to find a solution.” Favouring personal religious beliefs over constitutional morality raises troubling questions in a constitutional democracy. 

Notwithstanding his judgment in the Ayodhya case where he ruled that no other cases of disputed religious sites would be reopened in light of the Places of Worship Act 1991, Justice Chandrachud later ordered the reopening of the Gyanvapi mosque case.  

On the hate and violence against Muslims, the court has either dodged them or been tokenistic.  

An exception worth noting, the Chandrachud court declared the electoral bonds scheme unconstitutional earlier this year. But given that it took the court more than five years to decide its unconstitutionality only further demonstrates its non-confrontational attitude towards the political executive.  

Politically sensitive cases aside, the court’s reputation under Justice Chandrachud as an unbiased constitutional entity has taken a significant hit regardless. Refusing to accommodate the demand for legalising same-sex marriage, the court has effectively abdicated its responsibility, leaving queer couples at the mercy of the legislature.

In his qualified dissent, CJI Chandrachud warned that declaring the Special Marriage Act (SMA) unconstitutional could regress India to the pre-independence period, when inter-caste and inter-faith marriages lacked legislative sanction. The irony is that the court could have easily accommodated same-sex couples within the existing framework of the SMA without declaring it unconstitutional. 

The Supreme Court's bail jurisprudence under CJI Chandrachud has been equally contentious, although there has been some recent shift in its approach in specific cases. Bail applications under the Unlawful Activities Prevention Act (UAPA) 1967 were routinely assigned to select Benches with judges known for their tough stance on granting bail.

Umar Khalid’s continuous denial of the bail plea - adjourned 14 times - is a glaring example of the court’s arbitrariness. Eventually, Umar had to withdraw his plea before the Supreme Court.

While Umar’s example is well known and often cited, it is worthy to note the languishing of all the political prisoners, where the process has become the punishment, and the court has regularly failed to uphold the principle of all citizens being equal before the law – a fundamental constitutional right of an Indian citizen. Difficult to ignore is the three-judge Bench’s overturning of a long-standing ruling by Justice Markandey Katju which had established membership of a banned organisation was not an offence – all under the CJI Chandrachud’s tenure.  

Outside the courtroom, Justice Chandrachud’s public romanticisation of religion and unabashed display of his religious sentimentality has jeopardised not only his reputation but of the court as well. The invocation of a deity as a guiding light may have worked for Mahabharat’s Arjun. But, in the modern constitutional democracy that India proudly claims to be, the involvement of a deity in public life is detrimental to the impartial duties of a court.

As I have argued earlier, the romanticisation of religion and cosying up to the powers that be have the potential to destabilise the faith of the ‘constitutional subaltern.’ The only upshot of his tenure is the unmasking of the pretentious farce of liberalism within the court.

Now we know better.  

(Burhan Majid teaches legal and constitutional theory at the School of Law, Jamia Hamdard, New Delhi. He tweets at @burhanmajid. Views are personal.)