Dhananjaya Y. Chandrachud

In 2020, he authored two decisions in the realm of gender justice and the armed forces of the country. In The Secretary, Ministry of Defence v Babita Puniya he directing the government to consider all woman officers in the Army appointed on Short Service Commissions for the grant of Permanent Commissions on an equal basis with their male counterparts. The Union Government had contended that “women are not employed on duties which are hazardous in nature unlike their male counterparts in the same Arm/Service.” It was also contended that the “inherent physiological differences between men and women preclude equal physical performances resulting in lower physical standards.”

In February 2020, he delivered the speech titled ‘The hues that make India: from plurality to pluralism' at the P D Desai Memorial Lecture in Gujarat. He stated:

Following protests against the judgment in the State of Kerala, a five judge Bench of the Indian Supreme Court, while hearing a review petition against the judgment in November 2019, decided to refer the matter to a larger Bench. Justice Chandrachud and Justice Nariman (who were both part of the original Bench that passed the majority judgment) dissented and held that the parameters for the exercise of the review jurisdiction of the Court had not been met.

Justice Subba Rao was a libertarian keen on establishing individual rights. He stood up to Indira Gandhi’s impulses. Justice Chandrachud too has a libertarian interpretation of constitutional rights. He has shown he is not afraid to dissent.

The risks which the use of Aadhaar “for any purpose” carries is that when it is linked with different databases (managed by the State or by private entities), the Aadhaar number becomes the central unifying feature that connects the cell phone with geo-location data, one’s presence and movement with a bank account and income tax returns, food and lifestyle consumption with medical records. This starts a “causal link” between information  which was usually unconnected and was considered trivial. Thus, linking Aadhaar with different databases carries the potential of being profiled into a system, which could be used for commercial purposes. It also carries the capability of influencing the behavioural patterns of individuals, by affecting their privacy and liberty. Profiling individuals could be used to create co-relations between human lives, which are generally unconnected… When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life.

The test of proportionality stipulates that the nature and extent of the State’s interference with the exercise of a right (in this case, the rights to privacy, dignity, choice, and access to basic entitlements) must be proportionate to the goal it seeks to achieve (in this case, purported plugging of welfare leakage and better targeting… … by collecting identity information, the Aadhaar program treats every citizen as a potential criminal without even requiring the State to draw a reasonable belief that a citizen might be perpetrating a crime or an identity fraud. When the State is not required to have a reasonable belief and judicial determination to this effect, a program like Aadhaar, which infringes on the justifiable expectations of privacy of citizens flowing from the Constitution, is completely disproportionate to the objective sought to be achieved by the State… the state has failed to demonstrate that a less intrusive measure other than biometric authentication will not sub serve its purposes.

More recently, in December 2019, he delivered a speech titled ‘Adding Nuance to Human Rights Discourse’ where he highlighted the importance of democratic scrutiny, procedures and deliberation as an important facet of human rights protection.

The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.  Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.

In Romila Thapar & Ors. v. Union of India & Ors, Justice Chandrachud dissented with the majority which refused to constitute a Special Investigation Team to probe the case concerning the arrest of five activists in connection with the 2018 Bhima Koregaon violence and held that in light of the particular circumstances of the case, the constitution of a Special Investigation Team was necessary to ensure a fair and impartial investigation.

Justice Chandrachud has authored several judgments on gender justice that call for a ‘change in mindsets’ as well as affirm the equal entitlements of women under the Constitution. In Indian Young Lawyers Association v. State of Kerala, he authored a concurring judgment holding that the practice of prohibiting women of menstruating age from entering the Sabarimala temple was discriminatory and violated the fundamental rights of women. In his judgment, he highlighted that “the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III.” He held that:

The judgment was acknowledged for recognizing that denying entry into temples to women on the basis of physiology amounted to a constitutionally prohibited practice of untouchability under Article 17. He stated that “the social exclusion of women, based on menstrual status, is a form of untouchability, which is contrary to constitutional values. Notions of ‘purity’ and ‘pollution’, which stigmatise individuals, have no place in a constitutional order.”

In a section titled ‘Stereotypes and women in the Armed Forces’, he emphasized on the need for a change in mindsets and came down heavily on the submissions of the Union Government and held that:

The judgment was reported internationally as well as in national media as a “landmark verdict ending gender bias” which is “against deeply embedded patriarchal mindsets and strong institutional biases.” At the International Judicial Conference hosted by India on the ‘Judiciary and the Changing World’, which saw the participation of Chief Justices and judges from over 23 countries, the President of India welcomed the judgment and commended it for its “progressive social transformation”

The judgment has expounded on the concept of the ‘environmental rule of law’ as a groundwork for the protection of the environment. The judgment was also welcomed by the United Nations Environment Program. In a separate section titled the ‘Environmental Rule of Law’, the Court drew from vast literature on environmental law which included the UN Sustainable Development Goals and the work of Amartya Sen and Dhvani Mehta to draw a link between the protection of the environment and the right to life under Article 21 of the Indian Constitution. In Bangalore Development Authority v Mr Sudhakar Hegde, he authored a judgment directing the appellant to conduct a rapid EIA as a result of the numerous deficiencies in the process leading up to the grant of Environmental Clearance. The Court noted the “patent contradiction” in disclosing the existence of forest land to be diverted for the project connecting Tumkur Road to Hosur Road. In a section titled ‘Courts and the Environment’, he highlighted the importance of a broad-based approach to the protection of the environment in the following terms:

Justice Chandrachud was a part of the seven-judge bench in Krishna Kumar Singh v. State of Bihar, which concerned the re-promulgation of ordinances. The enduring rights theory, according to which the rights and liabilities accrued by virtue of an ordinance were said to have an enduring effect even after the expiration of the ordinance was held bad in law. Justice Chandrachud writing for the majority held that the rights and liabilities accrued during the force of the ordinance would continue to exist even after the expiration of the ordinance only in public interest or on the basis of constitutional necessity and that ‘irreversibility’ and ‘impracticability’ are the yardsticks to determine what constitutes ‘public interest’. He observed:

Justice Chandrachud was part of the Constitution Bench in National Capital Territory v. Union of India, in which the nature of power of the Lieutenant Governor of Delhi vis-à-vis the Government of Delhi was decided.  The majority unanimously observed that the Chief Minister, not the Lieutenant Governor, is the executive head of the territory and that the Lieutenant Governor had no independent decision-making power, save and except as provided by the Constitution in exceptional situations. It was observed that he had to follow the aid and advice of the Council of Ministers, except when the matter was related to police, public order and land. It was also held that by virtue of Article 239AA(4) of the Indian Constitution, the Lieutenant Governor could, in the case of any disagreement between the Delhi Government and the Lieutenant Governor, refer ‘exceptional’ matters to the President seeking his opinion. In such cases, the decision of the President would be final. Justice Chandrachud's concurring opinion which was commented upon for its clarity and nuance, held that an ‘exceptional matter’ is one in which “the Government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union Government”. Justice Chandrachud emphasized on the obligation of the Lieutenant Governor to abide by the aid and advice of the Delhi Government and observed that the interpretation that aids the basic features of representative governance and the cabinet form of government should be adopted. He held:

Justice Chandrachud has authored numerous judgments on affirmative action in India. Foremost amongst these is his judgment in B.K. Pavitra II v. Union of India, where he upheld the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018. The Act concerned the grant of consequential seniority to candidates appointed on the basis of reservation. The judgment was recognised for undertaking a critical and nuanced analysis that weighs towards an inclusive definition of 'efficiency' and consequently 'merit', - one that is consistent with the principle of substantive equality, as opposed to formal equality. Drawing on the work of Amartya Sen, he held that:

Justice Chandrachud has authored opinions regarding the interpretation of insurance contracts. In one such decision, a claim was filed by the wife of the deceased who while riding his motorcycle, experienced pain in the chest and shoulder, suffered a heart attack and fell from the motorcycle. Justice Chandrachud discussed extensively the jurisprudence on insurance law in various jurisdictions, dealt with the interpretation of the expressions ‘accident’, ‘bodily injury’ and ‘outward, violent and visible means’. He rejected the claim noting that there is no evidence to show that any bodily injuries were suffered due to the fall from the motorcycle or that it led to the assured suffering a heart attack.

In a judgment reported in national media, Justice Chandrachud dealt with the question of whether a death caused due to malaria occasioned by a mosquito bite constituted a ‘death due to accident’ covered under the terms of an insurance policy. He rejected the contention that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. Justice Chandrachud noted the distinction between the occurrence of a disease  which may be considered as an accident and a disease which occurs in the natural course of events. He referred to the World Health Organization's World Malaria Report 2018 and noted that in a country severely afflicted with Malaria, the mosquito bite was neither unexpected nor unforeseen and therefore, death caused by a mosquito bite would not be covered by the insurance policy.

Justice Chandrachud has delivered notable dissenting judgments. He has been called the ‘judge who is not afraid to dissent’. His dissents have drawn the attention of the academia and media and one article notes that:

In the judgment dated 28 September 2018, the Indian Supreme Court upheld that constitutional validity of the Act by a 4-1 majority, with Justice Chandrachud penning the sole dissent. His dissent, which came to be called the ‘dissent for the ages’ noted numerous deficiencies in the proposed system and struck down in its entirety the Act as constituting a “fraud on the Constitution”. In the celebrated dissent, he based his analysis of the Aadhaar architecture on five key aspects - surveillance, proportionality, Money Bill, inequality and individual identity.

Considered the ‘heart’ of his dissent, Justice Chandrachud struck down of the entire Act as it was passed as a Money bill. Justice Chandrachud noted that while “Ordinary bills can be passed only when they are agreed to by both Houses… the Constitution carves out a limited role for the Rajya Sabha in the passage of Money Bills.” He noted that in the case of a Money Bill, the Rajya Sabha has no amending power, but merely the power to recommend changes  which are not binding on the Lok Sabha. In other words, any  change that the Rajya Sabha wishes to seek in the bill can be rejected in its entirety by the Lok Sabha.

Justice Chandrachud's dissent has received academic analysis and has led some scholars to write that the dissent ranks alongside the great dissents in the history of the Indian Supreme Court. Lead commentators and experts labeled the dissent as a ‘stirring dissent’, ‘fiery dissent’, ‘historic dissent’, ‘stinging dissent’ and ‘lone yet powerful dissent’. Some invoke in reference to the dissent the famous lines of Chief Justice Charles Hughes that “a dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.” His dissent was noticed in judicial pronouncements  elsewhere in the world.

Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Article 110(1)(a) to (g)… Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5), we accordingly direct that this batch of matters be placed before Hon’ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.

Justice Chandrachud also emphasised on the necessity of ensuring a fair and impartial investigation which he regarded as an ‘integral component’ of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21 of the Indian Constitution. He observed  that “if this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty”.

He propounded the ‘direct and inevitable effect test’ to identify whether a tax amounts to a restriction on the freedom of trade and commerce.

Justice Dhananjaya has been a speaker at conferences organised by bodies of the United Nations including United Nations High Commission on Human Rights, International Labour Organisation and United Nations Environmental Program, the World Bank and Asian Development Bank. He delivered a lecture titled “Global Constitutionalism in the Age of Transnational Judicial Conversations in Human Rights”, organised by Supreme Court of Hawai’i and the University of Hawai’i on 6 June 2018. He has delivered numerous speeches in India at premier law institutions as well as events organized by civil society. His most recent speeches include:

2) Uttar Pradesh Rajarshi Tandon Open University (2017)

Foremost amongst his notable dissents is his opinion in Puttaswamy (II) v. Union of India. In 2016, the Government of India enacted the Aadhaar Act, which is the world's largest biometric ID system. World Bank Chief Economist Paul Romer described Aadhaar as “the most sophisticated ID programme in the world”. As the basis for the overarching system had been laid down in 2010, the Aadhaar system was subject to a wide range of orders by the Supreme Court between 2013 and 2019. The Act was challenged before the Supreme Court on numerous grounds, which included a charge of bypassing the Upper House or Rajya Sabha by being passed as a Money Bill, of  creating a surveillance state, and creating a class of citizens which would be excluded from the class of beneficiaries. Some groups also raised significant privacy concerns with the government database that held the biometric and personal information of every individual in the country.

The judgment is also noteworthy for his observations on sexual autonomy and privacy. In 2013, a two judge Bench of the Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation upheld Section 377 of the Indian Penal Code which criminalized carnal intercourse against the order of nature. Justice Chandrachud referred to the decision as striking “a discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.” He observed that the decision was wrong as “the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.” He concluded by disagreeing “with the manner in which Koushal has dealt with the privacy – dignity-based claims of LGBT persons” and held that:

Justice Chandrachud authored a judgment with far reaching consequences in the political sphere in Shivraj Singh Chouhan. v. Speaker, Madhya Pradesh Legislative Assembly. Justice Chandrachud held that the Governor's exercise of power to convene the legislative assembly for a floor test during an ongoing session of the assembly was “legitimate to the purpose of ensuring that the norm of collective responsibility is duly preserved”. He accepted the submission that the Governor commands the power to order a floor test if the Governor has – based on “objective material” – reasons to believe that the government has lost its majority. Significantly, he noted that the power of the Governor is not unbridled in the following terms:

The 2006 notification represents an independent code with the avowed objective of balancing the development agenda with the protection of the environment. An applicant cannot claim an EC, under the 2006 notification, based on substantial or proportionate compliance with the terms stipulated in the notification. The terms of the notification lay down strict standards that must be complied with by an applicant seeking an EC for a proposed project. The burden of establishing environmental compliance rests on a project proponent who intends to bring about a change in the existing state of the environment… There can be no gambles with the environment: a ‘heads I win, tails you lose’ approach is simply unacceptable; unacceptable if we are to preserve environmental governance under the rule of law.

The judgment was welcomed by lawyers and academicians alike. Justice Chandrachud also delivered a concurring opinion in the case of Central Public Information Officer v. Subhash Chandra Agarwal where he agreed with the majority that the office of the Chief Justice of India is a public authority and falls within the ambit of the Right to Information Act 2005. Justice Chandrachud's opinion was widely discussed for evolving jurisprudence around the balancing of the right to privacy and the public interest. His opinion was also commented upon for expanding the ambit of the phrase ‘public interest’ to include information ‘on the adequate performance of public authorities’ which includes ‘information on the selection of judges to the higher judiciary which must be placed in the public realm’. While the majority and the other concurring opinion applied the proportionality test to balance the right to privacy and public interest, Justice Chandrachud expanded the application of the proportionality test to balance the  rights of privacy and information. In that context he observed:

Justice Chandrachud has also authored a judgment on the validity of grating ex post facto Environmental Clearances in Alembic Pharmaceuticals Ltd v Rohit Prajapati. The erstwhile Ministry of Environmental and Forests had issued an administrative circular in 2002 envisaging the grant of ex post facto clearances to those industries that had failed to comply with the mandatory EIA notification of 1994. The ex post facto clearances granted to a group of drug and pharmaceutical companies located in Gujarat were challenged. Justice Chandrachud set aside the administrative circular of 2002 and noted that the concept of ex post facto ECs derogates from the fundamental principles of the environmental rule of law. He noted that the grant of ex post facto ECs was contrary to both the precautionary principle as well as the principal of sustainable development. Justice Chandrachud noted that all the industries in question had made significant infrastructural investments. In this backdrop, he imposed a fine of Rs 10 crores each for the purpose of restitution and restoration of the environment. He held:

From 1998, he was Additional Solicitor General of India until his appointment as a Judge. He became a judge at the Bombay High Court from 29 March 2000 until his appointment as Chief Justice of the Allahabad High Court. During this time, he was also Director of Maharashtra Judicial Academy. He was Chief Justice of the Allahabad High Court from 31 October 2013 until appointment to the Supreme Court of India. He was appointed Judge of the Supreme Court of India on 13 May 2016.

Dhananjaya studied law at Delhi University in 1982 at a time when few jobs were available to young law graduates. He worked for a while, as a junior advocate assisting lawyers and judges, including some memorable briefings that he did for Fali Nariman. He then joined the LLM Program at Harvard law school. After graduating from Harvard, Chandrachud first worked at the law firm Sullivan and Cromwell. He describes this as "sheer fluke" due to the strong pecking order that existed at that time, and a strong bias against Indians and similar developing countries. After that, he practised law at the Supreme Court of India and the Bombay High Court. He was designated as Senior Advocate by the Bombay High Court in June 1998.

Dhananjaya Yeshwant Chandrachud (born 11 November 1959) is currently a Judge of the Supreme Court of India. He is a former Chief Justice of the Allahabad High Court and a former judge of Bombay High Court.

Dhananjaya Chandrachud was born on 11 November 1959. His father Yeshwant Vishnu Chandrachud was the longest serving Chief Justice of India. His mother Prabha was a classical musician. After attending Cathedral and John Connon School, Mumbai and St. Columba's School, Delhi, he graduated with honours in Economics and Mathematics from St. Stephen's College, New Delhi in 1979. He then obtained his LL.B. degree from Delhi University in 1982, followed by an LL.M. degree from Harvard University in 1983. At Harvard, he studied on the prestigious Inlaks Scholarship, and received the Joseph H Beale prize. He went on to receive his Doctorate of Juridical Sciences (S.J.D.), from Harvard University in 1986. His doctoral thesis was on Affirmative Action; it considered the law in a comparative framework.

Justice Chandrachud authored the minority opinion for himself and two other judges in Abiram Singh v. C.D Commachen which concerned the interpretation of Section 123(3) of the Representation of the Peoples Act, 1951. The provision states that appealing for votes based on “his” religion, race, caste, community or language amounts to a corrupt practice by a candidate. The question concerned was whether the word ‘his’ qualified only the candidate or the election agent, or whether it included the person to whom the appeal was addressed. The majority affirmed a broader reading of the term to include a prohibition on the appeal to the religion, race, caste community or language of the voters themselves. Justice Chandrachud wrote:

Justice Chandrachud delivered a dissent in Romila Thapar & Ors.  v. Union of India, where an investigation by a Special Investigation Team (SIT) was sought by five human rights activists who were charged and arrested for commission of offences under the Unlawful Activities (Prevention) Act, 1947 following the violence that broke out during Elgar Parishad event in 2018. The majority refused the constitution of the SIT. In his dissent, Justice Chandrachud directed that the investigation should be conducted by a SIT and reprimanded the Pune police for their mala fide behaviour in aiding the conduct of “media trial”.