16, Nov 2022 | CJP Team
The 50th Chief Justice of India, Justice D Y Chandrachud, took office on November 9. His term began at a pivotal time when the judiciary is dealing with myriad cases of violation of basic human rights and high expectations are being put on him. He holds exceptional academic credentials and attended Harvard Law School and the University of Delhi, two of the top colleges in India and the world. He has published several significant judgments and contributed to the advancement of progressive jurisprudence, particularly on matters pertaining to gender and women’s empowerment. CJI Chandrachud has been long known for his feminist and non-conforming thinking, who not only believes in voicing his dissent whenever necessary, but has shown that we, as a society, need to listen to the demands made by women and other oppressed genders.
He has been at the forefront of efforts to safeguard the rule of law and improve access to justice. In addition to having the longest term in recent years of about two years—Justice DY Chandrachud will be the youngest CJI in the previous ten years.
As he starts his two year long tenure, some highly significant cases will probably be listed for hearing. Some of these cases are highly contested, and have been pending for more than a few years. Here is a glimpse of such potential cases:
Cases that will potentially be heard during the tenure of CJI Chandrachud:
Forest Rights Act case:
In a ruling dated February 13, 2019, the Supreme Court ordered the removal of more than 11.8 lakh tribal families and traditional forest inhabitants from their homes in 16 Indian states. Although this was purportedly done to safeguard wildlife, it was observed by many that the Court had not examined the legality of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006—the basis for the case that is currently before it.
Justices Arun Mishra, Navin Sinha, and Indira Banerjee constituted the three-judge bench of the Supreme Court which ordered state governments to evict tribal families and traditional forest inhabitants whose petitions have been denied by the appropriate authority on or before July 27, 2019. This order was later stayed in 2019 by a bench comprising of Justices ArunMishra, Navin Sinha and M.R. Shah.
[Wildlife First & Ors. Petitioner(S) Versus Ministry of Forest And Environment & Ors., WP (C) No(s). 109/2008]
Petition challenging Anti-conversion Law
In 2020, a PIL was filed by Citizens for Justice and Peace (CJP)against the promulgated Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018, ostensibly prohibiting forceful prohibition of conversion for the purposes of marriage. In the year 2021, the Supreme Court allowed the NGO to move an application to amend its petition by including two other similar anti-conversion laws passed by Madhya Pradesh and Himachal Pradesh.
The petitioner-organization argued in the PIL that the provisions of the contested Act and Ordinance violated Article 21 of the Constitution since they gave the State the authority to restrict an individual’s personal liberty and restrict their freedom of choice and religion. The issue has not yet been listed.
Plea challenging Abrogation of Article 370 of the Indian Constitution
On August 5, 2019, the Central government declared its intention to divide Jammu and Kashmir into two Union territories and withdraw the region’s special status under Article 370. Several applications challenging the constitutionality of the statute repealing Article 370 of the Constitution, which granted Jammu and Kashmir special status, and dividing the state into two Union Territories have been submitted to the highest court. The Jammu and Kashmir Reorganization Act, 2019, was later the subject of some petitions filed in opposition to the government’s delimitation decision.
In September 2022, the Supreme Court’s bench headed by the former CJI U.U. Lalit had said that it will list the matter- challenging the abrogation of Article 370 and the bifurcation of Jammu and Kashmir into two Union Territories- for hearing after the Dussehra break. The matter is yet to be listed.
[Radha Kumar and Ora vs UOI and Ors, WP(C) 1070/2019]
Hate Speech cases
The Supreme Court will be examining two separate petitions against hateful content made during politico-religious festivities. The first case is a freshly filed public interest litigation (PIL) that has prayed for guidelines against the backdrop and political conspiracies that resulted in such hate speeches. In the PIL, advocate Harpreet Mansukhani Saigal, the petitioner has claimed that a larger conspiracy is afoot to turn India into a police state, victimising the average person in the most arbitrary and unconstitutional ways possible. .The bench comprising former CJI UU Lalit and Justice Ravindra Bhat while hearing this plea about hate speech being mixed with criminal conspiracy, had asked the petitioner to file specific instances of hate speech instead of giving a vague overview of the problem. According to the CJI Lalit, the petitioner had a legitimate argument to claim that hate speech is polluting the entire atmosphere and that it has to be stopped. The petition was last heard in October and was supposed to be listed in the month of November.
[Harpreet Mansukhani v UOI, W.P.(Crl.) No. 89/2022]
The second case, an ongoing one, now seeks to hold the police chiefs of Delhi and Uttarakhand in contempt for failing to take action against spiteful remarks made at politico-religious events in December, 2021. The Supreme Court bench of the then Justices DY Chandrachud and Hima Kohli had, on October 10, ordered the Uttarakhand Government and the Government of NCT of Delhi to file affidavits outlining the facts and the action they have taken in response to a contempt petition alleging blatant and disobedient failure on the part of the DGP, Uttarakhand Police and DGP, Delhi Police to take action with regard to hate speeches made by prominent individuals in Dharma Sansad in the State of Uttarakhand and an event organized by Hindu Yuva Vahini in the national capital. The matter was supposed to be listed in the month of November.
[Tushar Gandhi v. Ashok Kumar Contempt petition 41/2022 in WP 732 of 2017]
Extensions to Reservations in the Lok Sabha and State Legislative Assemblies
Mr. Ashok Kumar Jain filed a case against Article 334 of the Constitution, which grants reservations for the Anglo-Indian Community, Scheduled Castes, and Scheduled Tribes in the Lok Sabha and State Legislatures, before the Supreme Court in October 2000. Originally, 10 years was the maximum time frame for which reservations could be made. With the exception of the most recent revision, which eliminated reservations for Anglo-Indians in January 2020, the Article has undergone seven amendments since 1969, with each one extending the reservations for these groups by 10 years.
The Constitution (79th Amendment) Act of 2000, which acted as the fifth extension and was passed in January of that year, was challenged by Mr. Jain. According to Mr. Jain, the Amendment infringes on the basic freedom guaranteed by the Constitution to democratically express one’s choice of candidates.
On November 1, a Constitution Bench of the Supreme Court posted the pleas challenging the constitutional validity of extending political reservation granted to the Scheduled Caste and Scheduled Tribe communities in Lok Sabha and State Legislature beyond the original ten years contemplated by the Constitution, for directions, on 29th November, 2022.
[Ashok Kumar Jain v. UoI W.P. (C) No.546/200]
Challenges to Section 6A of the Citizenship Act, 1955, Assam’s National Register of Citizens and the Assam Accord
The origin of the NRC process lies in the 1985 Assam Accord entered into between the Rajeev Gandhi-led Union Government with the leaders of Assam. A part of para 5 of the Accord was given statutory recognition by Section 6-A of the Citizenship Act, 1955. Section 6A, specified a new procedure for Assamese residents to become citizens. All persons who had migrated to Assam after January 1, 1966 and before 25 March 1971 were to become citizens of India either immediately or after a period of ten years.
The Assam Sanmilita Mahasangha challenged Section 6A in November 2012 on the grounds that it discriminated against other Indian citizens by offering a separate path to citizenship to this particular group of migrants. The NRC remained dormant until an SC Bench comprising Justices R.F. Nariman and Ranjan Gogoi ordered the State of Assam to begin updating it in 2013. In December 2015, the Bench referred the challenge to Section 6A to a 5-Judge Constitution Bench.
On November 01, 2022, a Constitution Bench of the Supreme Court posted the pleas challenging the constitutional validity of Section 6A of the Citizenship Act inserted by way of an amendment in 1985 in furtherance of the Assam Accord, for directions, on 13th December, 2022. The Bench also asked the Counsel representing the parties concerned to file joint compilation of written submissions, precedents, and any other documentary material along with a common index.
[Assam Sanmilita Mahasangha & Ors v. Union of India & Ors. W.P. (C) No.562/2012]
Electoral Bonds case
The Supreme Court announced that it will list the case challenging the electoral bond scheme, which permits political parties to receive anonymous funding, on November 14, 2022. This statement was made by CJI DY Chandrachud in response to Senior Advocate Anoop Chaudhari’s reference of a new lawsuit contesting a recent regulation pertaining to an electoral bond system.
By inserting “an additional time of 15 days” for the issuance of electoral bonds “in the year of general elections to the legislative assemblies of States and Union Territories with legislature,” a new notification amended the scheme.
Two non-governmental organizations, the Association for Democratic Reforms and Common Cause, filed a petition alleging that the money bill route was used in order to avoid the Rajya Sabha, where the governing BJP government lacks a majority.
The petitioners have argued that the amendments destroyed the political funding transparency by removing the requirement for names and addresses of contributors of electoral bonds in yearly contribution reports of political parties to be filed to the Election Commission of India. The abolition of the donation cap by the 2013 Companies Act change and the 2010 Foreign Contribution (Regulation) Act amendments to Section 236 have both been contested as opening up the possibility of foreign funding for Indian political parties.
[Association for Democratic Reforms & Anr v. Union of India Cabinet Secretary & Ors., W.P. (C) No. 333/2015]
Hijab ban case
On October 13, 2022, The Supreme Court delivered a split verdict on the issue of Karnataka hijab ban. Justice Hemant Gupta dismissed the petitions against the hijab ban, while Justice Sudhanshu Dhulia allowed them, setting aside the Karnataka High Court judgment refusing to lift the ban on hijab in schools. After the split judgment, the matter will now be heard by a three-judge bench of the Supreme Court.
On December 28, 2021, six girl students of the government-run PU College in Udupi, Karnataka, were reportedly denied admission to classes because they were wearing a hijab. They protested and later filed a petition before the High Court. The hijab dispute soon spread to other places in Karnataka, too. On March 15, Karnataka High Court upheld an order by the state government that effectively empowered government colleges to ban hijab on campus. The High Court said that hijab is not a part of Islam’s essential religious practices and that requiring students to be in uniform is reasonable.
[Aishat Shifa v. State of Karnataka & Ors. [CA No. 7095/2022] and other connected matters
On May 11, 2022, while hearing the petitions challenging the constitutional validity of the offence of sedition under Section 124-A of the IPC, the Supreme Court had ruled that the Centre and state governments are to refrain from registering any new FIRs under Section 124-A IPC while it was under consideration by the Centre.
A bench comprising former Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli, held that all pending cases, appeals and proceedings with respect to charges framed under Section 124-A are to be kept in abeyance, and adjudication with respect to other sections may proceed with no prejudice be caused to accused.
On October 31, 2022, the SC granted more time to the Centre to take “appropriate steps” with regard to the reviewing of the colonial-era provision. The SC also took note of other petitions on the matter and issued notices to the Centre, seeking its reply in six weeks’ time.
[S.G. Vombatkere Vs Union Of India (WPC 682/2021) Editors Guild Of India And Anr. Vs Union Of India And Ors. (WPC552/2021)]
The Unlawful Activities (Prevention) Act, 1967, is being challenged in Supreme Court as having “manifestly arbitrary” provisions and a very broad definition of “unlawful activity” that has a stifling impact on free expression. In this petition filed by Foundation of Media Professionals, it is argued that the UAPA’s provisions are “arbitrary and perverse, since they represent a condemnation of all democratic expression,” and that governments are abusing them “to target any and all kinds of dissent.” The foundation urged the top court to declare the UAPA unconstitutional on the grounds that it was manifestly arbitrary and violated Articles 14, 19, and 21 of the Constitution, which guarantee the rights to equality, freedom of speech, and life and liberty. The Supreme Court, which first took up the matter September 26, 2022 will be hearing the matter in November.
[Foundation Of Media Professionals & Anr V UOI & Ors W.P.(C) No. 230/2022]
Challenge against CAA:
On October 31, the Supreme Court, conducted an initial round of hearing of petitions challenging the validity of the Citizenship Amendment Act, 2019 (CAA). The bench comprising the former Chief Justice U.U. Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi subsequently posted the case for further hearing before an appropriate bench on December 6.
CAA was passed by Parliament on December 11, 2019 and it was met with protests all across the country. The CAA came into effect on January 10, 2020.
Upon being informed of the total 232 petitions challenging the CAA, and the latest affidavit filed by the Union Government has not yet been compiled and provided to all parties, the bench appointed advocates Pallavi Pratap and Kanu Aggarwal as nodal counsel respectively from the Petitioner’s and Union Government’s side, in the matter to ensure proper compilation of documents to facilitate the smooth conduct of the proceedings.
In its latest affidavit, the Union Government has opined that CAA is a limited legislation that does not affect the rights of any Indian citizen. It submits that the CAA is a “benign piece of legislation which seeks to provide a relaxation, in the nature of an amnesty, to specific communities from the specified countries with a clear cut- off date.”
[Indian Union of Muslim League and Ors. v. UoI and Ors. WP(C) No. 1470/2019]
On September 9, 2022, the Supreme Court adjourned a batch of petitions arising out of the Delhi High Court’s split verdict on the issue of criminalisation of marital rape. Two petitions arising out of the high court’s verdict came up for hearing before a bench comprising Justices Ajay Rastogi and BV Nagarathna. During the hearing, the Bench said that it would tag all similar matters together.
This follows the divided judgement from the Delhi High Court on May 11. The Court arrived to a judgment; one judge, Justice C Hari Shankar, argued for reading down the legal defense shielding husbands and wives from punishment for forcing marital sex on their wives, while the other judge, Justice Rajiv Shakdher, refused to deem it unconstitutional. However, both judges had agreed to provide the certificate of authority to appeal to the High Court because the case involves significant legal questions that the Supreme Court must resolve.
Whether IPC section 375(2)’s exclusion of marital rape from the crime of rape is unconstitutional and in violation of articles 14, 15, and 21 is the question posed by the current appeal for review before the Supreme Court.
On September 16, Supreme Court bench of Justice Ajay Rastogiand Justice B. V. Nagarathna issued notice on a batch of petitions filed assailing the split verdict of the Delhi High Court on the issue of Marital Rape. The Court agreed to hear the issue in the month of February, in the year 2023, and clubbed all the matters regarding the issue of Marital Rape pending in the Supreme Court together.
[RIT Foundation v. UOI and other connected matters]
Places of Worship case:
A writ petition under Article 32 of the Constitution has been moved in the Supreme Court which is in nature of a Public Interest Litigation seeking orders from the Supreme Court for effective enforcement of the Places of Worship (Special Provisions) Act, 1991.
The petition filed by the Jamiat Ulama-i-Hind has submitted that Muslim Places of Worship are being made the subject matter of frivolous controversies which is in clear violation of the 1991 Act and despite there being a bar such proceedings are being permitted to proceed with interim orders altering the status quo which has been maintained for ages in the Muslim Places of Worship.
The bench led by CJI Chandrachud directed the Union to file its counter-affidavit by December 12, 2022 and posted the matter in the first week of January 2023.
[Ashwini Kumar Upadhyay Versus Union of India and Ors. W.P.(C) No. 1246/2020 and connected matters]
Here is a glimpse of some landmark judgments given by CJI Chandrachud in the past-
Landmark Judgments Delivered by J. Chandrachud in the past:
National Anthem case:
“Desirability is one thing but making it mandatory is another. Citizens cannot be forced to carry patriotism on their sleeves and courts cannot inculcate patriotism among people through its order”
Justice Chandrachud has been a part of and voiced his non-conformist opinion in numerous high-profile matters after being elevated to the top court in 2016. The National Anthem controversy was one of these cases. The 2016 order requiring moviegoers to stand when the National Anthem is played was criticized by Justice Chandrachud, who claimed that no Indian needed to “wear his patriotism on his sleeve.” He had questioned when such “moral policing” would end if it were mandated that certain types of clothing should not be worn to the movies because they could be construed as disrespecting the national anthem.
[Shyan Narayan Chouksey v. Union of India & ors., WPC No. 855/2016]
“To exclude from worship, is to deny one of the most basic postulates of human dignity to women. Neither can the Constitution countenance such an exclusion, nor can a free society accept it under the veneer of religious beliefs.”
In a 4:1 verdict, the Supreme Court granted women of all age groups entry into Kerala’s Sabarimala temple, breaking the temple’s age-old tradition of restricting menstruating women from entering its premises. In a majority verdict, with the lone woman judge Indu Malhotra writing the only dissent, Justice Chandrachud ruled that excluding women from worship denied “one of the most basic postulates of human dignity”.
[Indian Young Lawyers Association v. State of Kerala (2019)]
Decriminalization of Section 377
“It’s too long a period for the LGBTQ community to suffer the indignities of life”
Justice Chandrachud was on the Supreme Court bench in August 2017 when the court ruled that the right to privacy was a basic right. As a result, Section 377 of the Indian Penal Code—which made homosexuality illegal—was repealed. The court in this case observed that because sexual orientation is a biological phenomenon, any discrimination based purely on this basis would be deemed to be a violation of citizens’ fundamental rights.
On the 4th anniversary of the Navtej Johar judgment, while Speaking at an event organized by the British High Commission, CJI Chandrachud said, “Equality is not achieved only by criminalization of Section 377 of the IPC, it must be extended to all walks of life including home, workplace, public place, etc. Which we captured. While the decision in Navtej (Section 377) was significant, we have a long way to go.”
[Navtej Singh Johar v. Union of India (2018)]
“The right of 1.2 billion citizens could not be tested as a mere contract with UIDAI, the Aadhaar implementation agency. Mobile phone has become an important feature of life and its seeding with Aadhaar poses a grave threat to privacy, liberty, autonomy.”
Justice Chandrachud was the sole voice of dissent in the passing the Aadhaar Act. While the court upheld the passage of the Aadhaar Act as money bill in the Parliament, Chandrachudwrote the judgment separately and mentioned that passing of Aadhaar Act as money bill was ‘fraud on Constitution’.
[K.S. Puttaswamy v. Union of India (2018)]
Bhima Koregaon case
“The grievance is that those five persons are being prosecuted for their views and their voices are sought to be chilled into silence by a criminal procedure”
Justice Chandrachud was also the only dissenting voice in the Bhima Koregaon case, wherein a plea for a probe by Special Investigation Team (SIT) was demanded into the arrest of the activists who allegedly instigated violence at Bhima-Koregaon and participated in a criminal conspiracy against Prime Minister Narendra Modi. The majority of CJI Dipak Misra and Justice AM Khanwilkar turned down the plea while Justice DY Chandrachud, was in dissent of the judgment. He upheld the rights of the five activists. In his minority opinion as a member of the bench hearing the bail plea of the activists in the Bhima Koregaon case, Justice Chandrachud wrote – “Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.”
[Romila Thapar v. Union of India (2018)]
Termination of pregnancy
In a recent landmark decision, a bench of Justices D Y Chandrachud, A S Bopanna, and J B Pardiwala ruled that unmarried women should be included in the Medical Termination of Pregnancy Act (MTP) and that their exclusion was “discriminatory.” The court panel led by Justice DY Chandrachud said that although the 1971 legislation deals with married women, the distinction between married and unmarried women is arbitrary and untenable, and it is crucial that women have the freedom to exercise their legal and safe abortion rights.
[X v. The Principal Secretary, Health and Family Welfare Department, Government of National Capital Territory of Delhi (2022)]
Hadiya marriage: ‘Love Jihad’
“When two freely consenting adults have decided to get married, can the court go into the rightness or correctness of the partner of the justness of the marriage?”
In a historic decision in 2018, a bench of Supreme Court judges – Chief Justice Dipak Misra, AM Khanwilkar and DY Chandrachud overturned a lower court’s order which had declared the marriage of Akhila Ashokan (who changed her name to Hadiya) and Shafin Jahan as ‘illegal’. The court affirmed that the freedom to decide on marriage and changing one’s faith is within one’s right to privacy and liberty while allowing the NIA to continue its investigation into the case. In his concurring opinion, Justice Chandrachud endorsed Hadiya’s autonomy “over her person” and stated that how she decided to live her life was “totally a matter of her choice.”
Before this the bench, during the pendency of the petition however had controversially brought in an agency like the NIA to verify the “claims against Hadia.”
[Shafin Jahan v. Asokan K.M (2018)]
Right to Privacy
“Life and personal liberty are inalienable rights… The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution.”
Justice Chandrachud also had to contend with several of his father’s rulings during his term. ADM Jabalpur v. Shivakant Shukla case ruling was overturned in one such instance by Justice Chandrachud, who authored the majority opinion in the 2017 privacy case. The Supreme Court’s Constitution Bench, which is made up of nine judges, ruled unanimously that the right to privacy is a basic one. The lead opinion was written by Justice Chandrachud, who emphasized how privacy was a crucial component of human dignity. The earlier judgment was described as having “serious flaws” by the current Chief Justice. The nine judges bench presiding over the judgment unanimously agreed that Right to Privacy is a fundamental right and that it is protected under Article 21 of the Constitution of India.
[K.S. Puttaswamy v. Union of India (2017)]
“The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life.”
According to the Supreme Court’s ruling on passive euthanasia, the right to a dignified death is a basic right just like the right to life. The highest court in India made the decision to permit passive euthanasia as a result.
According to Justice Chandrachud’s ruling, personal freedom must be protected. He added that in order to pursue happiness and uncover the purpose of life, one must have freedom, dignity, and autonomy.
[Comman Cause v. Union of India, AIR 2011 SC 1290]
Justice Chandrachud was part of a five-judge Constitution bench that on November 9, 2019 in a unanimous verdict cleared the way for the construction of a Ram Temple at the disputed site at Ayodhya, and directed the Centre to allot a five-acre plot to the Sunni Waqf Board for building a mosque. While the judgment did not bear the name of the author, many believe that it was written by CJI Chandrachud himself.
The judgement on an issue that has vexed the Indian constitutional scheme, while recognising that what happened on December 6,1992 — the demolition of the Babri Masjid— was a criminal act, granted Hindus exclusive control and rights over the contested land, where a mosque once stood.
This judgement also upheld however the Places of Worship Act, 1991 and firmly held that this law was a part of the basic structure of the Constitution.
[M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors.]
Gyan Vapi Case
The Gyanvapi case pertains to a petition by five Hindu women who have asked a local court to allow daily prayers before idols on its outer walls as well as other “visible and invisible deities within the old temple complex”. The mosque is located next to the Kashi Vishwanath temple.
The Committee of Management of Anjuman Intezamia Masjid, the organisation that has filed the appeal in the top court in the Gyanvapi case, contended that the order of the Varanasi civil court allowing a videography survey in the mosque complex violated the Act.
The bench of the then Justices Chandrachud and Narasimha had made an observation backing it. “In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered,” the court had said.
In addition to this, the then Justice DY Chandrachud had said in the court—that the Places of Worship (Special Provisions) Act, 1991 does not debar ascertainment of the religious character of a place of worship. Although it’s possible that then-Justice Chandrachud didn’t mean it that way, his remarks on ascertainment did convey the idea that Hindu communal groups have the legal right to claim any mosque. This runs counter to what the five-member bench stated in the Ayodhya decision from November 2019.
According to the 2019 Ayodhya judgment, secularism is one of the Constitution’s fundamental tenants, the Places of Worship Act preserves the secularism ideal, and our Constitution recognizes non-retrogression, which states that a privilege that has been granted cannot be reduced or revoked.
[Committee Of Management Anjuman Intezamia MasajidVaranasi Petitioner(S) Versus Rakhi Singh & Ors., Petition(s) for Special Leave to Appeal (C) No(s).9388/2022]
The institutional and social expectations of the court are tremendous, and the current CJI has a challenging tenure.
His tenure, after the short and successful term of CJI UU Lalit, brings more hope.
Gendering justice, personal freedom and the surveillance state are some of the issues uncompromisingly dealt with.
Time will bear witness will to determine how the story will unfold.