A Liberal Chief Justice During A Majoritarian Rule : Challenges Before Justice DY Chandrachud As CJI

Justice Chandrachud has also given primacy to the individual's rights over collective social morality. "The individual, as the basic unit, is at the heart of the Constitution. All rights and guarantees of the Constitution are operationalized and are aimed towards the self-realization of the individual", he wrote in the Sabarimala case.

Also, personal liberty is a value which is held very dear by him. "Deprivation of liberty even for a single day is one day too many", he famously said in the Arnab Goswami case. In the Mohammed Zubair case, Justice Chandrachud granted relief to the journalist after noting that he was "trapped in a vicious cycle of criminal process". In the Bhima Koregaon case, he wrote a dissenting judgment to hold that the investigation must be transferred from the Maharashtra police to an SIT constituted by the Court. "Court has to be vigilant to ensure the liberty of those who take up unpopular causes. Voices of opposition cannot be muzzled because it is a dissent", he said.

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 will 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?When the announcement of Justice Chandrachud as the next CJI was imminent, there was vicious trolling in social media against him by a particular section. Fake news was spread that he is a holder of a US Green Card Visa. Some of his observations in the judgment striking down Section 497 IPC were twisted to spread a malicious message that he has approved adultery. His landmark judgment upholding the abortion rights of women rattled far-right groups and "men's rights activists", as the judgment acknowledged the existence of marital rape and held that a wife has the right to seek termination of pregnancy arising out of forcible sex by husband. The same group reacted with hostility to Justice Chandrachud's observation that non-traditional families, including unmarried and queer relationships, must not be denied legal rights.

Justice Chandrachud had also caused upset among caste-apologists when he held that "merit" cannot be narrowly seen as mere performance in an examination while allowing OBC reservation in NEET-AIQ.

Dialogic judicial review

Justice Chandrachud has also advanced the concept of "dialogic judicial review", where the Court raises questions at the executive and demands justifications from regarding its decisions, while refraining from dictating the policy. A perfect example will be the orders passed in the suo motu COVID case, where the Court doubted the vaccine policy followed by the Union Government. After the bench led by Justice Chandrachud raised certain strong questions and even asked the Government to show the details of the utilization of its budgetary allocation for procurement of vaccines, the Government changed its vaccine policy.

"Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies....Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform", the bench said.

Reviewing the decisions of the armed forces, Justice Chandrachud's bench quashed the criteria adopted for granting permanent commission for women officers on the ground that they were propagating gender-based stereotypes resulting in discrimination against women. In the MediaOne case, Justice Chandrahcud was not prepared to accept at face value the sealed cover documents produced by the Ministry of Home Affairs raising "security concerns" about the channel and permitted its telecast.

The concept of federalism - which has become a deeply contentious issue of late- received a boost from Justice Chandrachud's judgment which held that GST Council recommendations cannot bind state legislatures. He introduced an interesting idea in the judgment - "uncoopeartive federalism" - and said that a degree of contestation between the Union and States is good for democracy.

Since Justice Chandrachud is not hesitant to exercise the powers of judicial review when the situation demands it, the executive is likely to be circumspect about his term as the CJI for nearly two years, which will coincide with the next Lok Sabha elections as well.

Recently, the Union Minister for Law and Justice Krien Rijiju, who had hitherto been adopting a sober and reverential tone while addressing the judiciary, launched a sharp criticism against judicial activism and collegium system. "When there doesn't exist any mechanism to control/keep the Judiciary within its boundaries then questions concerning JudicialActivism are raised…It would be better if people/institutions focus on the responsibilities given to them otherwise we would also be blamed that we are doing Executive Activism.", the Minister said.

Criticism regarding approach in cases with high political stakes

Justice Chandrachud has also come under criticism for the manner in which certain cases with high political stakes were dealt with. He was the author of the judgment which ruled out foul play in the death of Judge BH Loya, who was holding the trial against Amit Shah and others in the Sohrabuddin fake encounter case. The judgment left many questions unanswered, as an extraordinary procedure was allowed to shut out an enquiry; a sort of mini-trial was held in petitions seeking investigation, but without allowing examination of witnesses (detailed critique of the judgment can be read here).

Senior Advocate Dushyant Dave, in a recent interview with Karan Thapar, said that in politically sensitive matters, Justice Chandrachud can be disappointing. While lauding Justice Chandrachud as an intellectual giant, the former President of the Supreme Court Bar Association however criticised the approaches taken in cases like Ayodhya and Gyanvapi in the interview. Dave pointed out that the oral remark made by Justice Chandrachud while hearing the Gyanvapi case that ascertainment of religious character of a monument is not barred under the Places of Worships Act "opened a pandora's box".

Challenging phase

It can be undoubtedly said that Justice Chandrachud will be heading the Indian judiciary at a time when the country is facing several challenges. There are ideological movements gaining momentum against some of the core Constitutional values like secularism and federalism; there are concerns about the weakening of institutions in the face of authoritarian tendencies of the executive; concerns are also raised about the weaponization of criminal law against dissenters and activists; society has been polarized like never before; there are complaints about the climate of hate and minority community members are expressing feelings of insecurity.

In fact, Justice Chandrachud himself has commented about the "growing intolerance" and the threat posed by "organized groups and interests" against free speech. Speaking at a webinar last year, he lamented that a popular brand had to withdraw its advertisement on the theme of LGBT rights due to "public intolerance". He has also condemned the tendencies to brand dissent as "anti-national".

Tackling judicial appointments

Ensuring the timely filling up of judicial vacancies with the suitable persons will be another onerous task which awaits Justice Chandrachud as the Chief Justice of India. The Union Government has been acting in flagrant disrespect of the judicial precedents and conventions by segregating collegium resolutions to keep certain recommendations pending and also by brazenly ignoring the names reiterated by the Collegium. The Centre withholding the approval for the recommendations relating to Justices Dipankar Dutta and Dr S Muralidhar has already raised eyebrows. The recent tirade made by the Union Law Minister against the collegium system is perhaps indicative of the executive's intention to assert primacy over judicial appointments. This will be an area where the future CJI will have to carefully negotiate, as proper judicial appointments are closely interlinked with the sustenance of judicial independence.

In the Navtej Johar judgment, there is a passage by Justice Chandrachud, which illuminates his constitutional vision :

"It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time".

The prime challenge before Justice Chandrachud as the CJI will be to materialize this vision during a majoritarian rule when the march of modernity is sought to be arrested by forces seeking to cement traditional hierarchies.