Justice DY Chandrachud, the former Chief Justice of India, is known for his powerful and progressive judgements that have made a significant impact on India’s legal system. His dissents are also one of the most highlighted moments of his tenure. These are not just disagreements; they reflect his strong beliefs in individual rights, equality, and justice. Often challenging traditional views and questioning majority decisions, his opinions stand out for their clarity and deep understanding of the law. These dissents have sparked important discussions and have the potential to change how laws are interpreted in India.
NEW DELHI : Dissents by Former CJI Justice DY Chandrachud are not just disagreements; they reflect his strong beliefs in individual rights, equality, and justice. Often challenging traditional views and questioning majority decisions, his opinions stand out for their clarity and deep understanding of the law. These dissents have sparked important discussions and have the potential to change how laws are interpreted in India. Let’s delve into seven of his most notable dissents, which continue to resonate as milestones in India’s legal landscape.
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Electoral Appeals Case | Delivered on 2 January 2017
In a landmark case that began in 1990, C.D. Commachen challenged the election of his opponent, Abhiram Singh, who was elected from Mumbai’s Santa Cruz constituency. Commachen argued that Singh had made communal remarks during the election campaign.
This dispute led to a prolonged legal battle lasting 25 years, finally ending with a decision by a seven-judge bench of the Supreme Court in 2017. The central question before the Court was how to interpret the word “his” in Section 123(3) of the Representation of the People Act, 1951 (ROPA). This section prohibits candidates from appealing to voters based on “his religion, race, caste, community or language.” The legal issue was whether “his” referred only to the candidate or extended to both the candidate and the voter.
The Supreme Court, by a 4:3 majority, ruled that
” Any appeal to ascriptive identities, whether related to the candidate or the voter, amounted to a “corrupt practice” under Section 123(3)”
However, Justice D.Y. Chandrachud delivered a 55-page dissent, offering a different interpretation of the law. He argued that the grammatical placement of the word “his” in the provision referred solely to the candidate and not to the voter. Justice Chandrachud wrote,
“The expression ‘his religion…’ must necessarily qualify what precedes, namely, the religion of the candidate in whose favour a vote is sought or that of another candidate against whom there is an appeal to refrain from voting.”
Justice Chandrachud further delved into the historical context of the provision and explained that Parliament’s intention was not to broaden the scope of “his” to include voters.
He noted that interpreting it otherwise would lead to a situation where candidates would be unable to address injustices faced by communities based on caste, race, community, or language.
Highlighting the potential implications, he observed that this could restrict candidates from speaking about issues of social inequality or historical wrongs. He concluded that the language of the provision clearly pointed to its limited application to the candidates and not the voters.
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Constitutionality of Aadhaar | Delivered on 26 September 2018
In November 2012, retired judge K.S. Puttaswamy filed a legal challenge against the Aadhaar scheme, which had become the main identification document for accessing numerous government welfare schemes.
After almost six years of deliberation, a five-judge bench of the Supreme Court delivered its verdict in 2018. By a 4:1 majority, the Court upheld the constitutionality of Aadhaar, stating that it did not violate the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Constitution.
The majority also ruled that the Aadhaar Act had been correctly passed as a Money Bill by Parliament.
Justice D.Y. Chandrachud, however, dissented with the majority opinion in a detailed judgment spanning 481 pages. He highlighted ,
“The importance of citizens’ “informed consent” when participating in large-scale biometric systems like Aadhaar.”
Justice Chandrachud pointed out that the Aadhaar Act failed to ensure this consent, stating,
“Participation in large-scale biometric systems such as Aadhaar should be based on the ‘informed consent’ of citizens.”
He criticized Section 28(5) of the Aadhaar Act, which actively denied citizens access to their own biometric data, calling it a violation of their right to privacy.
Justice Chandrachud further disagreed with the classification of the Aadhaar Act as a Money Bill, asserting that this categorization was unconstitutional. He believed that passing the Aadhaar Act as a Money Bill undermined the authority and role of the Rajya Sabha, which is an essential part of India’s parliamentary structure. In his dissent, he explained,
“As a subset of the constitutional principle of division of power, bicameralism is mainly a safeguard against the abuse of the constitutional and political process.”
Justice Chandrachud’s dissent emphasized the importance of protecting citizens’ rights in the digital age, particularly with the increasing reliance on biometric systems. He argued that safeguards should be in place to ensure transparency, accountability, and the protection of individual privacy in such systems.
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Bhima Koregaon arrests | Delivered on 28 September 2018
In August 2018, the Maharashtra Police arrested five activists, accusing them of inciting caste-based violence during the Elgar Parishad event held earlier that year. The police alleged that the activists were linked to Maoist groups and had intentionally encouraged violence to spread dissatisfaction against the government. Following these arrests, five prominent citizens filed a joint petition in the Supreme Court. They questioned the legality of the arrests and sought the formation of a Special Investigation Team (SIT) to oversee the Maharashtra Police’s investigation and conduct an independent inquiry into the matter.
In September 2018, a three-judge bench of the Supreme Court delivered its verdict on the case. By a 2:1 majority, the Court ruled that the accused did not have the right to demand a specific mode of investigation. However, Justice D.Y. Chandrachud dissented from this view in a detailed 43-page opinion. He highlighted several flaws in the police investigation, raising concerns about the fairness of the process.
Justice Chandrachud pointed out that,
“One of the significant issues was the Maharashtra Police’s decision to share selective details of the investigation with the media while the case was still ongoing”.
He noted that such actions by the police created a biased perception of the accused in the public’s mind, undermining the impartiality of the investigative process. In his words,
“By selectively disclosing details to the media, the police had created public bias against the accused and cast ‘a cloud on the impartiality of the investigative process.’”
Based on these observations, Justice Chandrachud strongly supported the formation of an SIT to ensure an independent and fair inquiry into the case.
His dissent emphasized the importance of preserving the integrity of the justice system by avoiding any influence that could compromise the rights of the accused. He argued that an
“Impartial investigation is crucial for upholding the rule of law and protecting constitutional rights.”
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Sabarimala temple entry | Delivered on 18 September 2018
In 2018, the Supreme Court delivered a historic judgment addressing the prohibition on women aged 10 to 50, often referred to as being in their “menstruating years,” from entering the Sabarimala Temple in Kerala. A five-judge Constitution Bench, led by Chief Justice Dipak Misra, declared this customary restriction unconstitutional. The practice, which had been legitimized through a 1965 Kerala legislation, was struck down by the majority ruling. While Justice Indu Malhotra’s dissent drew significant attention, Justice D.Y. Chandrachud’s concurring opinion presented a nuanced perspective that diverged from the majority’s reasoning.
At the core of this case was the Essential Religious Practices (ERP) test, a legal standard used to determine whether a religious practice, protected under Article 25 of the Constitution, aligns with constitutional values. The ERP doctrine originated from the 1951 Supreme Court case State of Bombay v. Narasu Appa Mali, which established that
“personal laws were not subject to fundamental rights scrutiny”
Under the ERP test, if a practice was deemed integral to a religion, the Court often upheld its constitutionality without weighing it against fundamental rights.
Chief Justice Misra and Justice A.M. Khanwilkar, in their majority opinion, applied the ERP test. They examined historical and religious records to conclude that:
” The ban on women entering the Sabarimala Temple was not an “essential” practice for the community and was therefore unconstitutional”
Justice Chandrachud agreed with the outcome but expressed reservations about the majority’s reliance on the ERP doctrine. He wrote,
“By reserving to itself the authority to determine practices which are essential or inessential to religion, the Court assumed a reformatory role which would allow it to cleanse religion of practices which were derogatory to individual dignity. Exclusions from temple entry could be regarded as matters which were not integral to religion. While doing so, the Court would set up a progressive view of religion. This approach is problematic.”
Justice Chandrachud’s remarks hinted at a broader critique of the ERP doctrine, with some commentators suggesting that his opinion could pave the way for a complete re-evaluation of this framework. However, despite his critique of the ERP doctrine, Justice Chandrachud ultimately concluded that
“The exclusion of women from the Sabarimala Temple did not qualify as an essential religious practice.”
In his 165-page judgment, Justice Chandrachud also expanded the interpretation of Article 17 of the Constitution, which prohibits untouchability. Traditionally, Article 17 has been understood to address caste-based untouchability. However, Justice Chandrachud extended its scope, stating that,
“It could also apply to discriminatory practices faced by menstruating women. He argued that such exclusionary practices were a form of untouchability and violated constitutional principles of equality and dignity“
This judgment not only reaffirmed the fundamental rights of women but also raised critical questions about the Court’s approach to interpreting religious practices and the role of constitutional morality in shaping these interpretations.
Justice Chandrachud’s concurring opinion remains a significant contribution to the discourse on equality, religious freedom, and the progressive interpretation of constitutional rights.
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RTI versus Judicial Independence | Delivered on 13 November 2019
In November 2009, the Central Information Commission (CIC) directed the Supreme Court to disclose certain correspondence between the Collegium and the government. This decision came after a request was filed under the Right to Information (RTI) Act, 2005. However, the Supreme Court appealed the CIC’s order, raising concerns about judicial independence and transparency. A decade later, in 2019, a five-judge Constitution Bench ruled that judicial independence and transparency are not mutually exclusive. The Court stated that whether specific information should be disclosed or withheld must be assessed on a case-by-case basis.
Justice D.Y. Chandrachud, while agreeing with the majority opinion authored by Justice Sanjiv Khanna, provided a detailed 112-page concurring judgment with additional insights. His judgment, which was even longer than the majority opinion, addressed critical issues like transparency in judicial appointments and the balance between privacy and the right to information.
All judges in the case agreed that information should not be withheld simply because it might affect the free and frank communication of constitutional authorities. However, Justice Chandrachud stressed the need for transparent and clearly defined criteria for judicial appointments. He argued that such clarity is essential to uphold public trust in the judiciary.
Justice Chandrachud’s analysis of the principle of case-by-case disclosure was also unique. He proposed using the triple test, first introduced in the landmark Puttaswamy judgment on the right to privacy, to balance an individual’s right to privacy against another’s right to information. This triple test includes:
- Existence of a law: The disclosure must be backed by a valid legal framework.
- Legitimate State aim: The disclosure should serve a valid public purpose.
- Proportionality: The extent of the disclosure should be proportional to the purpose it seeks to achieve.
According to Justice Chandrachud, the RTI Act inherently meets the first two criteria. Therefore, when a request under the RTI Act involves privacy concerns, the deciding factor should be proportionality. He suggested that the Central Public Information Officer (CPIO) should justify any decision made under Section 8(1)(j) of the RTI Act, which allows rejection of requests based on privacy grounds, with “detailed reasons.”
Justice Chandrachud’s judgment also emphasized that transparency in judicial functioning is critical for building public confidence in the judiciary. At the same time, he acknowledged the need to protect sensitive information in certain cases where its disclosure might undermine privacy or judicial independence.
This judgment is significant as it establishes a balance between transparency and confidentiality within the judiciary, ensuring that both public trust and constitutional principles are upheld. Justice Chandrachud’s detailed reasoning underlines the importance of applying fairness and accountability in all matters of public interest.
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Review of Aadhaar judgement | Delivered on 20 January 2021
After the Supreme Court delivered its landmark Aadhaar judgment in 2018, seven parties filed review petitions challenging the decision. They argued that the ruling contained
“errors apparent on the face of the record” and claimed that critical evidence had not been considered. Additionally, they pointed out inconsistencies in the Court’s reasoning. The five-judge bench, after reviewing the petitions in chambers, dismissed them by a 4:1 majority. Justice D.Y. Chandrachud dissented, reaffirming the stance he took in his original Aadhaar judgment.
In the original Aadhaar ruling, the majority acknowledged that the Speaker of the Lok Sabha’s decision to classify a bill as a Money Bill could be subjected to judicial review. However, this aspect was revisited in the case of Rojer Mathew v. South Indian Bank Ltd. (2019), where another five-judge bench expressed doubts about the reasoning in the Aadhaar judgment. The bench in Rojer Mathew observed that the scope of judicial review of Money Bills had not been “substantially discussed” in the Aadhaar case and referred this issue to a larger seven-judge bench for further consideration.
In his dissenting opinion during the Aadhaar review, Justice Chandrachud highlighted the significance of this development. He pointed out that when a bench of equal strength has questioned the reasoning of the Aadhaar judgment, it is not appropriate to dismiss the review petitions outright. He emphasized,
“The judgment in Rojer Mathew casts doubt on the reasoning of the Aadhaar majority. This raises substantial questions of law and highlights the need for the issues raised in the review petitions to be thoroughly examined by the Court.”
Justice Chandrachud’s dissent once again underscored his commitment to safeguarding constitutional principles and the right to judicial accountability.
By stating that a review should not be dismissed while a larger bench is deliberating on related issues, he reinforced the importance of ensuring that all legal doubts are resolved comprehensively. This approach reflects his belief in the necessity of a fair and transparent judicial process, particularly in cases that have far-reaching implications for the Constitution and citizens’ rights.
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Marriage Equality | Delivered on 17 October 2023
In October 2023, a five-judge Constitution Bench of the Supreme Court unanimously held that queer individuals do not have a fundamental right to marry. The Court also refused to recognise LGBTQIA+ rights under the Special Marriage Act, 1954, leaving the community without access to this legal framework.
While all judges agreed on the final decision, Chief Justice D.Y. Chandrachud’s dissenting views in his expansive 247-page opinion stood out. This was notably longer than Justice S.R. Bhat’s 89-page majority judgment, Justice P.S. Narasimha’s 13-page concurring opinion, and Justice S.K. Kaul’s 17-page partial dissent. CJI Chandrachud addressed several critical aspects of the case, many of which could influence future discussions on LGBTQIA+ rights.
One key disagreement arose over the role of the judiciary in recognising the right to marry for queer individuals. Justice Bhat’s majority opinion held that:
the judiciary was not the appropriate forum for granting such recognition, arguing that it required legislative action and would involve creating an entire framework for registration, eligibility, divorce, alimony, and other ancillary rights.
However, Chief Justice Chandrachud disagreed, stating that the recognition of a queer person’s right to marry fell squarely within the judiciary’s scope under judicial review. He argued that it did not violate the principle of separation of powers.
Justice Chandrachud, along with Justice Kaul, further held that
“Queer couples have a right to enter into civil unions”
This right, he said, flows from Article 19 of the Constitution, which guarantees the right to freedom of association and personal choice. He emphasized the importance of providing queer individuals with legal recognition for their relationships, even if it is not in the form of traditional marriage. This marked a significant divergence from Justice Bhat’s view, which highlighted practical challenges in creating a legal regime for civil unions.
Another significant divergence by Chief Justice Chandrachud concerned the right of non-heterosexual, unmarried couples to adopt children. He interpreted Section 57 of the Juvenile Justice Act differently from the majority, arguing that
“the use of the word “spouse” in the provision could not be read as an automatic prohibition against adoption by unmarried couples, including queer couples. “
He stated that the law should not discriminate against individuals based on their marital status, noting that “Section 57 does not impose such a restriction.”
Justice Chandrachud’s analysis offers a powerful precedent for the future of LGBTQIA+ rights in India. His observations on civil unions, adoption rights, and the judiciary’s role in upholding fundamental rights provide a solid foundation for future legal challenges aimed at achieving equality for queer individuals.
His dissent represents a progressive vision for the legal recognition of LGBTQIA+ rights in a country where the community continues to fight for social and legal acceptance.
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