D.I.Y. Chandrachud: A Judge Who Is Not Afraid To Dissent

Some looked away, some smiled at each other as cameras flashed the most at one among them. Collectively, the judges could have been made a full constitutional bench or three, but they were all on the lawns of the Supreme Court, waiting. It was the final public event for outgoing Chief Justice Dipak Misra, the Supreme Court Bar Association바카라�s farewell tea party. But at this point, the cynosure of all eyes was Justice Dhananjay Y. Chandrachud. The man himself tried his best to deflect the attention바카라�but he had done a good job of attracting it in the first place.

Judges of the Supreme Court, mostly ensconced behind a table on a raised platform, are not used to cameras. But the photojournalists had a nose for news바카라�they weren바카라�t enamoured of any of the other judges. The 바카라�dissenting바카라� judge바카라�whose strong, clear and rationally orde­red arguments for personal liberty and other constitutional virtues had left their mark on a string of recent landmark verdicts바카라�is who they wanted to frame within their crosshairs. It was fin­ally only upon the arrival of Justice Misra and the inc­oming Chief Justice Ranjan Gogoi that their attention shifted and the discomfiture left Justice Chandrachud바카라�s face.

Not that he바카라�s reticent by nature. In court, Justice Chandrachud is quite animated during hearings바카라�not given to staring impassively while a lawyer argues with passion, as some judges are. It바카라�s not perso­nal mannerisms, however, that have captured the imagination of the people. It바카라�s his judgments, especially his notes of dissent. And it바카라�s not just his brother judges, Justice Chandrachud has also dissented against his father바카라�s decision in at least two matters, including the 바카라�lurking ghost of ADM Jabalpur바카라�.

It was the late Justice Yeshwant V. Cha­ndrachud who, with Justice P.N. Bhagwati, decided that the right to life itself could be suspended during an emergency in the 바카라�ADM Jabalpur case바카라�. He went on to bec­ome chief justice and later apologised for the decision. Justice Bhagwati also publicly repented, saying he should have res­igned before he wrote it, but observers point out that he did so when he was in running for a Bharat Ratna in 2010-11.

Anyway, in the recent privacy judgment, the younger Chandrachud found occasion to correct a historical wrong바카라�even if sin and atonement aren바카라�t admissible as juridical categories, no one missed the poetic justice as he called the ADM Jabalpur decision seriously flawed and ruled against it. In private, he confi­des that he always agreed with Justice H.R. Khanna바카라�s note of dissent바카라�a disagreement that had cost him a chief justiceship.

Strikingly, Justice Chandrachud often writes individual judicial opinions, even if he바카라�s in agreement with the majority ruling바카라�a rare measure of engagement. And his social and legal philosophy found space for expression in several cases of importance since he had an extended stint at the 바카라�chief바카라�s court바카라�, first with Just­ice Khehar and then with Justice Misra.

Pinning down the patriarchy behind the adultery law, allowing the entry of women at Sabarimala, relaxing the curbs on high­way liquor vends, citing the unconstituti­onality of Aadhaar, upholding privacy as a fundamental right바카라�a core liberalism runs through all of them like a guiding ethos. 바카라�From his judgments, I find he has exhibited a great passion for upholding individual life and liberty,바카라� says former Attorney General Mukul Rohatgi.

How else to grasp the importance of being Justice Chandrachud? Simple바카라�by the order of seniority, he is likely to bec­ome Chief Justice in 2022, succeeding Justice U.U. Lalit, with whom he is sharing a bench in the Supreme Court now. Not only that, such an ascension, if it goes through as per schedule, means he will keep the post for two years. His eventful and tough stint as CJ at the Allahabad High Court will stand him in good stead.

A pretty neat work ethic anchors his workdays. He starts his day early, rising by 5 am, and goes through files, regardless of how small or big the issue is, and does not work late. He is known to be kind to his staff, never losing his temper or being punitive. In court, though, he had lost his cool during the Loya hearings at senior advoc­ate Dushyant Dave. And again with Shyam Divan during the Aad­haar heari­ngs, but that did not reflect in his judgment, where he disagreed with the majority ruling and accommodated Divan바카라�s arguments.

The universal rule is that there must be exceptions, and that too is not missing from his resume. Several people were disappointed with his not taking a potentially available route in the Loya case and directing a special investigation into the controversial death of the CBI court judge.

In the Sabarimala verdict too, the dissent by Justice Indu Malhotra has kept the conversation going. 바카라�Personally, I agree with her dissenting view바카라�. Religion can바카라�t be tested on rationality or logic alone and the court should not dabble in religious practices. I바카라�m not against gender equality but it바카라�s not the correct yardstick here. Take the practice of self-flagellation during Muharram. Can one call it simply illogical or irrational,바카라� asks Rohatgi.

바카라�The issue of a denominational temple can바카라�t be decided the same way as other temples,바카라� says senior advocate Rajiv Dha­van. In another context, Dhavan des­cri­bes Justice Chandrachud as 바카라�judicially playing to the galleries.바카라� He adds another tempering note: 바카라�With the two chiefs, he has had a sample of cases but most of these were social/moral iss­ues. He바카라�s yet to come in on cutting-edge issues like corruption and econo­mic policies,바카라� says Dhavan.

Both lawyers had appea­red before Justice Chand­rachud in a case on the appointment of the cardiology HoD at AIIMS, Delhi. The decision in favour of one doctor was challenged with a review petition, which Justice Misra said would be heard in open court. Review petitions are usually decided by judges in their chambers; it바카라�s an extreme rarity for one to go to open court, except in death sentence appeals.

The apex court바카라�s initial ban on liquor vends situated less than 500 metres from highways had been welcomed by many. But the ruling had to undergo several modifications later. 바카라�The judge had decided on the basis of data related to deaths due to intoxicated driving without considering other factors. He went overboard. It was rightly modified,바카라� says Dhavan. Adds Rohatgi: 바카라�The Supreme Court also makes mistakes but corrects itself. It shows he is a progressive judge.바카라�

Both Rohatgi and senior advocate San­jay Hegde find similarities with ano­ther judge known for dissenting with the government바카라�Justice K. Subba Rao, who ret­ired as CJI. 바카라�Justice Subba Rao was a libertarian keen on establishing individual rights. He stood up to  Indira Gan­dhi바카라�s impulses,바카라� says Hegde. 바카라�Justice Cha­ndra­chud too has a libertarian interpretation of constitutional rights. He has a phenom­enal capacity to write articulate and acc­essible rulings. He has shown he is not afraid to dissent. But the greater task is ahead of him as he moves towards being CJI. He has to get more of his brother judges to build a consensus around his positions, like the US chief justice, Earl Warren,바카라� says Hegde, who was taught constitutional law by Justice Chandrac­hud for his master바카라�s at Bombay University.

Says senior lawyer Abhishek Manu Singhvi: 바카라�Educated at top global institutions, he has an intellectual disposition바카라�those are qualifications and qua­lities ideal in a judge. That바카라�s why each of the judgments from Court 1 have a Chandrachud stamp. You may agree or disagree but he has a great flair for writing, crafts his reasoning well and makes each of his judgments a persuasive essay. I would count him amongst the three academically minded judges of high intellectual calibre that we have."

Justice Chandrachud was educated at St Stephen바카라�s College in Delhi, obtained an LLB from DU and completed his masters from Harvard. He practised at the Bombay High Court, which designated him as a senior advocate at 38. He became a judge at 40. His two sons are also legal scholars and published authors. The elder son, Abhinav Chandra­chud, rece­ntly wrote a book on judicial history, aided by exclusive material and funding from American scholar George Gadbois, who had had great access to Supreme Court judges during the 1970s-­바카라�80s. A whole host of apex court judges had turned up for the book바카라�s launch.

바카라�He바카라�s part of an elite group of the legal fraternity,바카라� says Mumbai-based advocate Mathews Nedumpara, striking a note of ambivalence. He is president of the Nat­ional Lawyers바카라� Campaign, which has opp­osed judicial appointments from amongst the kith and kind of former or sitting judges. 바카라�We welcomed Justice Chandrachud바카라�s robust statement on dissent being a safety valve. We hope he바카라�ll maintain as liberal a stand when it comes to petitions about the judiciary. In one case, he바카라�d dismissed our application for video recordings in court with a one-line order.바카라� The ball is in the court.

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His Important Judgments

• Privacy affirmed as a fundamental right for Indians, overruled controversial judgment by father and four others

• Aadhaar intrusion into privacy; 바카라�money bill바카라� used to bypass Rajya Sabha

• Adultery scrapped colonial-era law

• Arrest of rights activists 바카라�Dissent safety valve of democracy바카라�; pulled up police for leaks to media

• Sabarimala ruled that personal law is not immune from constitutional scrutiny.

• Court proceedings allowed video recording; 바카라�Open courts foster public confidence바카라�.