I
Lead CJI DY Chandrachud Prof Baxi_Document2.qxd 25-10-2022 10:26 Page 14
Lead/ CJI-designate Dr DY Chandrachud
Shantanu Mitra
NDIA had, in 75 years of Indepen-
dence, 15 illustrious prime minis-
ters. Only the 13th served for 16
days and many who did not even
complete 365 days (which include
the 2nd, 3rd, 4th, 7th, 10th, 11th,
12th, 14th and 16th). Only three
prime ministers (the 1st, 17th and 18th)
served two terms. Only one prime min-
ister (No 6) served for two years and 126
days, exceeding the tenure of Dr DY
Chandrachud, who will be the 50th
chief justice on November 9, 2022.
What, if anything, do these statistics
show? For one thing, the lack of gender
parity: India had only one woman prime
minister, whereas for the first time, the
elevation of a woman chief justice of
India (CJI) will occur in 2027 for a brief
period. Thus far, the Supreme Court of
India had only eight women justices;
three are presently on the High Bench.
One of the main expectations is that the
new CJI will be able to persuade, as a
matter of high priority, the judicial colle-
gia and the Union of India (UOI) in en-
suring gender parity in the Supreme
Court and High Courts.
The second thing that emerges from
this data is the difference between lead-
ers of executive and legislative power
Justice Chandrachud is much hailed as a part of Constitution benches which decriminalised consensual homosexuality
(below right), recognised privacy as a fundamental right and decriminalised adultery, and was part of the majority holding
which upheld the right of women of all ages to enter Sabarimala Temple (below left).
Great Expectations
The new CJI has made an indelible impression as an academic scholar and was part of benches which
enhanced jurisprudence. His subtle but firm leadership will be a great demosprudential asset
By Prof Upendra Baxi
14 October 31, 2022
and the wielders of constitutional judi-
cial power. Whereas Justices must
superannuate upon reaching a particu-
lar age, there are no such limits on being
a prime minister. This question is not
even raised in party or public discourse,
probably because it affects the dignity of
political democracy.
But let me confine the present dis-
cussion to the superannuation of Jus-
tices. I have always argued in favour of a
constitutional amendment that requires
the same age of retirement for High
Court Justices and Supreme Court Jus-
tices (at present the former retire at 62
years, whereas the latter at 65 years). If
this is not a “palpable” (in Chief Justice
Yashwant Chandrachud’s words) or
“manifest” (in the words of Rohinton
Nariman J.) arbitrariness which can be
easily rectified by a constitutional am-
endment, I do not know what is arbi-
trary! I have, for about 20 years, written
and campaigned for an amendment that
fixes the superannuation of all Justices
at 70 years, which would redress the vis-
ages of ageism from our justice system
altogether. The time for championing
these structural reforms is now.
Justice (Dr) Chandrachud, having
ringside experience of judicial adminis-
tration, knows the responsibilities
entailed, in what I call as OAL (organi-
sational adjudicative leadership) and
HAL (hermeneutical adjudicative
leadership). The CJI bears perhaps dis-
proportionate responsibility in matters
of OAL. But it is a just expectation
that he would give certain matters
high priority.
One such matter is high confiden-
tiality of in-house management. Should
this extend to matters such as allega-
tions of sexual harassment where an in-
house committee is set up whose report
is conveyed to the CJI? Already, Justice
Indira Banerjee (who was with Justice
Indu Malhotra in a committee of three)
has publicly suggested that the report
exonerating an indicted Justice should
be made public. Given his well-bred
views on gender justice, would one be
far too wrong in expecting that the
incoming CJI will make the in-house
procedures more transparent?
The same may be said about a con-
siderable number of matters received by
the apex court in sealed envelopes; the
deployment of sealed envelope jurispru-
dence is spread across defense procure-
ment inter-state contracts, allegations
of judicial corruption and even the
| INDIA LEGAL | October 31, 2022 15
Lead CJI DY Chandrachud Prof Baxi_Document2.qxd 25-10-2022 10:26 Page 16

Lead/ CJI-designate Dr DY Chandrachud

held the right of women of all ages to

enter Sabarimala Temple. And notably,
in relation to environmental law and
jurisprudence, he has spoken for the
Court of the need to develop a capa-
cious notion of “environmental rule of
law”, a notion apt for controlling and
combating anthropogenic harm.
Justice Chandrachud was also a
member of the five-judge bench which
decided the Ayodhya-Babri Masjid
case, a case that won great applause for
declaring that the Places of Religious
Worship Act was an aspect of the basic
structure and essential features of the
Constitution. That holding did not
prevent him from ruling in the
Gyanvapi Case that a relief asking for

Justice Chandrachud was also a member of the bench which decided the Ayodhya-Babri Masjid (above left) case, a case that won
a right to pray was not forbidden by

great applause for declaring that the Places of Religious Worship Act was an aspect of the basic structure of the Constitution. That
that law; only the change of the nature
In a landmark verdict (February 2020), Justice Chandrachud ruled in favour of
holding did not prevent him from ruling in the Gyanvapi Case that a relief asking for a right to pray was not forbidden by that law. women officers in the Army getting permanent commission and command postings,
of the place of worship was frozen as

rejecting the argument stressing their physiological limitations as being based on

of 1950 (save the then ongoing

“sex stereotypes” and “gender discrimination against women”.

cricket control board! Such jurispru-
dence leads to opacity in the adminis-
tration of justice and must be constitu-
tionally unfriendly to rule of law. How
may it be extended to matters such as
threats to the independence of the judi-
ciary (such as Justice AK Patnaik inves-
tigations concerning conspiracy to dis-
credit Chief Justice of India Ranjan
matters? May the CJI render altogether
into a dead letter the mandate of
Article 145 (3) requiring a bench of five
justices “for the purpose of deciding any
case involving a substantial question of
law as to the interpretation of this
constitution” (or a reference under
Article 143)?
a number of legislations and executive
acts have been impugned and a large
number of matters have yet to be heard.
These include the decision to demone-
tise, election bonds, amendments to the
citizenship law, revocation of statehood
to Jammu and Kashmir, validity of
security legislations and many a review
petition. Nor do I know how any CJI
Ayodhya dispute).
One would expect considerable con-
tinuity and development by Justice
Chandrachud’s progressive and pur-
poseful leadership in regarding women
and trans people’s rights as human
rights. The recent momentous decision
holding that marital status must not
affect anyone’s right to seek an abortion
remains a beacon light.1 Pivotal also is
Navy, insisting on a level playing field
that ensures women have the opportu-
nity to overcome “histories of discrimi-
nation”. He will be long remembered for
introducing intersectionality to Indian
jurisprudence.2
And writ large across his many opin-
1 At a time when the SCOTUS is
busy dismantling abortion rights and
other rights to justice by minorities:
see Upendra Baxi, “More than A
Requiem for Reportative Freedom”,
India Legal, 26 July, 2022. Especially,

Gogoi)? Is there any justification to
regard the matter as secret?
Further, though even the so-called
“judicial revolt” of 2017 (by incumbent
senior Justices of the Supreme Court)
accepted the sole prerogative of the
chief justice to constitute benches, the
question of institutional integrity of
T
he exercise of the Master of
Rolls prerogative also concerns
the scheduling of matters for
hearing and disposal. The question as
to what sort of discretion the CJI pos-
sesses is an affront to the very preroga-
tive. In the nature of things, this pre-
rogative is near absolute. Certainly,
may come to fully know about many
other long pending cases. Further, the
idea of any queuing theory has not been
studied by courts in India. Perhaps, it is
considered infra dig!
HAL is a co-equal aspect. No one
studying the Supreme Court of India in
the past six years will fail to acknowl-
the inclusion of persons who are not
cisgender women. The judgment also
declares non-consensual intercourse
between married couples as marital
rape, which may further reinforce the
struggle to declare marital rape as a
punishable offence.
ions is his insistence on life and liberty
and rights, which have saved many a
targeted individual from excesses and
abuse of executive powers. In all these
progressive realms of law, Justice
Chandrachud has for himself, and for
the Court, made the notion of constitu-
tional morality a sword and shield for
given the aggressive stigma and lack
of adequate healthcare facilities, it
remains an open question how far
this right will reach in practice: see,
Deepa Parent, “Indian Women
Cautious About the ‘Historic’ Abortion
Ruling”, Open Democracy 12 October,
2022.

rights structures remains a matter of
public importance. Should sensitive
constitutional matters be assigned to a
two-judge bench where opinions of
learned individual Justices could hon-
estly differ?
lawyers may mention, as they often do,
that a particular matter be expedited,
but they may not dictate the actual
schedule of hearing.
The question assumes visages of
urgency because the constitutionality of
edge the presence and participation of
Justice Chandrachud, whether express-
ing the opinion of the Court, concur-
ring, dissenting, or overruling. He has
made an indelible impression as a wide-
ly read academic scholar, at home with
H
is Lordship is well known for
breaking the “glass ceiling”; in
a landmark verdict (February
2020), he ruled for the Court in favour
of women officers in the Army getting
permanent commission and command
equality, rights, development and jus-
tice for all.
It will be out of bounds for me to say
how Justice Chandrachud may further
develop HAL, but I can say unerringly
that his ever so subtle, swift and supple,
2 Patan Jamal Vali vs The State
of Andhra Pradesh, MANU/SC/0323/
2021. But see, Sanjay Jain, “Addressing
Disability-Based Discrimination and
Violence Through Intersectionality”

Writ large across Justice Chandrachud’s

This happened on October 13, 2022, Indian and global jurisprudence. He is postings, rejecting the argument stress- but gently firm adjudicative leadership, (forthcoming, 2023); Rahul Bajaj,

many opinions is his insistence on life and

where the two Justices on a bench dif- much hailed as a part of Constitution ing their physiological limitations as will remain a great demosprudential “Twenty Years on, Inclusion Remains

liberty and rights, which have saved many

fered in the hijab case, referring the benches which decriminalised consen- being based on “sex stereotypes” and asset for a long time to come. a Distant Dream for India’s Disabled”
entire matter to the CJI for a larger sual homosexuality, recognised privacy “gender discrimination against women”. (OxHRH Blog, 29 October, 2015)
bench. Is the CJI in convening smaller
a targeted individual from excesses and as a fundamental right under Article 21 Later, he led a bench which paved the —The author is an internationally- http://ohrh.law.ox.ac.uk/twenty-years-

abuse of executive powers.

benches not expected to anticipate cre- and decriminalised adultery; and was way for granting permanent commis- renowned law scholar, an acclaimed on-inclusion-remains-a-distant-
ative judicial disagreement on some part of the majority holding which up- sion to women officers in the Indian teacher and a well-known writer dream-for-indias-disabled

16 October 31, 2022 | INDIA LEGAL | October 31, 2022 17