Dhananjaya Y. Chandrachud

To date, Dhananjaya has been conferred three Honoris Causa

Foremost among his notable judgments is his authorship of the lead opinion in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. as part of a unanimous nine-judge Bench decision of the Indian Supreme Court which affirmed that the right to privacy is a constitutionally guaranteed right under the Indian Constitution.[16] Justice Chandrachud grounded the right to privacy in dignity, liberty, autonomy, bodily and mental integrity, self-determination and across a spectrum of protected rights. Writing for himself and three other judges, he stated:

Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.[16]

The judgment is also noteworthy for his observations on sexual autonomy and privacy.[17] 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.”[16] 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.”[16] He concluded by disagreeing “with the manner in which Koushal has dealt with the privacy – dignity-based claims of LGBT persons”[16] and held that:

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.[16]

The above observations played a role[17][18][19][20][21] in the judgment of the Supreme Court declaring Section 377 of the Indian Penal Code unconstitutional.[22] His opinion is also known for expressly overruling the ADM Jabalpur v. Shiv Kant Shukla (Habeas Corpus) case in which the lead opinion was written by the father of Justice Chandrachud - former Chief Justice of India Y. V. Chandrachud.[23][24]

Terming dissent as “the safety valve of democracy”,[25][26][27] he has authored judgments upholding the right to the freedom of speech in numerous cases. In Indibility Creative Pvt Ltd v State of West Bengal,[28] he authored a judgment which imposed a fine on the State of West Bengal and granted remedial compensation for disallowing the screening of the political satire Bhobishyoter Bhoot through extra-constitutional measures. The Court had, by an interim order, directed that there must be no bar on the screening of the movie.[29][30] In the final judgment, Justice Chandrachud held that even if there was any apprehension of public discontent, police protection must be provided instead of prohibiting the display of the movie. The judgment is noteworthy[31] for its recognition of the positive duty on the State to protect the freedom of speech and expression. He held that:

Free speech cannot be gagged for fear of the mob…Political freedoms impose a restraining influence on the state by carving out an area in which the state shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the state. But, apart from imposing ‘negative’ restraints on the state these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that conditions in which these freedoms flourish are maintained. In the space reserved for the free exercise of speech and expression, the state cannot look askance when organized interests threaten the existence of freedom. The state is duty bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the state must be utilized to effectuate the exercise of freedom.

The judgment was reported[31][32][33][34][35] for preventing the censorship of free speech and limiting its exceptions strictly to the grounds mentioned in Article 19(2) of the Constitution.

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’[36] as well as affirm the equal entitlements of women under the Constitution. In Indian Young Lawyers Association v. State of Kerala,[37] 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.”[37] He held that:

The Court must lean against granting constitutional protection to a claim which derogates from the dignity of women as equal holders of rights and protections… Does the Constitution permit this as basis to exclude women from worship? Does the fact that a woman has a physiological feature – of being in a menstruating age – entitle anybody or a group to subject her to exclusion from religious worship? The physiological features of a woman have no significance to her equal entitlements under the Constitution… To exclude women is derogatory to an equal citizenship.

The judgment was acknowledged[38][39] 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.[40][41][42] 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.”[37]

Following protests against the judgment in the State of Kerala,[43][44][45][46][47] 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[48][49] and held that the parameters for the exercise of the review jurisdiction of the Court had not been met.[50]

In Joseph Shine v Union of India[51] he authored a concurring judgment declaring the provision of the Indian Penal Code which concerned the adultery law in India unconstitutional. Emphasizing the constitutional commitment to equality and dignity, he held that:

The creation of a just, egalitarian society is a process. It often involves the questioning and obliteration of parochial social mores which are antithetical to constitutional morality…The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects… Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption that a woman contracts away her sexual agency when entering a marriage. That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. Such a notion has no place in the constitutional order. Sexual autonomy constitutes an inviolable core of the dignity of every individual.[51]

His concurring opinion was noticed for its emphasis on the sexual autonomy of women even within the bounds of a marital relationship.[52][53] He held that:

…. in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. The Court is merely interpreting the text of the Constitution to re-state what is already set in ink — women are equal citizens of this nation, entitled to the protections of the Constitution. Any legislation which results in the denial of these Constitutional guarantees to women, cannot pass the test of Constitutionality.[51]

It is reported[54][55] that the above observations have a significant bearing on the law employed for the restitution of conjugal rights as well as the exception carved out in law from criminalizing marital rape. Interestingly, this case was the second case where Justice Chandrachud overruled[56][57][58][59][60] a decision of his father, former Chief Justice of India Y. V. Chandrachud.

Army

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[61] he directed 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.”[61] It was also contended that the “inherent physiological differences between men and women preclude equal physical performances resulting in lower physical standards.”[61]

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 submissions advanced…are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker” sex and may not undertake tasks that are “too arduous” for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers…If society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere – it is unlikely that there would be a change in mindsets.[61]

The judgment was reported internationally[62][63][64] as well as in national media as a “landmark verdict ending gender bias”[65][66][67][68] which is “against deeply embedded patriarchal mindsets and strong institutional biases.”[69] 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”[70]

Navy

A short time thereafter, he authored the judgment in Union of India v Ld. Cdr. Annie Nagaraja[71] wherein the Court directed a similar relief to be granted to women sailors in the Indian Navy. The Court noted the submission of the Union Government that “certain avenues such as sea-sailing duties are ill-suited for women officers as there is no return to the base” and that “Navy ships of today are not structured nor have the infrastructure to accommodate women sailors alongside men sailors” and rejected these submissions as “illusory and without any foundation”.[71] He held that:

A hundred and one excuses are no answer to the constitutional entitlement to dignity, which attaches to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field. A level playing field ensures that women have the opportunity to overcome their histories of discrimination with the surest of responses based on their competence, ability and performance.[71]

The judgment received similar international attention[72] and was widely reported upon in national media.[73][74][75][76][77][78][79][80][81]

Recently, he authored a judgment which affirmed that sexual harassment at the workplace violates the fundamental rights of women guaranteed under the Indian Constitution.[82] The verdict was based on a complaint made by a senior officer of the Punjab and Sind Bank that she was transferred out from Indore to Jabalpur because she had complained about irregularities and corruption.[83] The woman, a chief manager and Scale IV officer, said she was also allegedly sexually harassed by her senior officer. He held that:

Sexual harassment at the workplace is an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution as well as her right to practice any profession or to carry on any occupation, trade or business… There can be no manner of doubt that the respondent (woman officer) has been victimized. This is symptomatic of a carrot and sticks policy adopted to suborn the dignity of a woman who is aggrieved by unfair treatment at her workplace. The law cannot countenance this. The order of transfer was an act of unfair treatment and is vitiated by malafides.

He directed the bank to send the woman employee back to the Indore branch and held that the bank may pass any other order only after she has completed a tenure of one year at the Indore branch.[84]

One of Justice Chandrachud's significant[85][86][87] opinions in the sphere of environmental law is his judgment in Hanuman Laxman Aroskar v Union of India.[88] A challenge was brought before the Supreme Court against the order of the National Green Tribunal upholding the grant of an Environmental Clearance to a proposed greenfield international airport at Mopa in Goa. A myriad of contentions were urged by the appellants questioning the grant of the clearance, which included the failure to make disclosures on forests and Ecologically Sensitive Zones as well as a faulty appraisal process and the use of erroneous sampling points. The Court observed the numerous deficiencies in the process leading to the grant of the clearance and directed that a rapid EIA be conducted afresh[89][90] by the project proponent. The Court highlighted that compliance with the core governing notification is mandatory 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.[88]

The judgment has expounded on the concept of the ‘environmental rule of law’ as a groundwork for the protection of the environment.[91] The judgment was also welcomed by the United Nations Environment Program.[92] In a separate section titled the ‘Environmental Rule of Law’,[93] the Court drew from vast literature[91] 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,[94] 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.[95] 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.[96][97] 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:

The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution.[94]

Justice Chandrachud has also authored a judgment on the validity of grating ex post facto Environmental Clearances in Alembic Pharmaceuticals Ltd v Rohit Prajapati.[98] 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.[99] 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.[100][101] He held:

Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.[98]

Justice Chandrachud was a part of the seven-judge bench in Krishna Kumar Singh v. State of Bihar,[102] 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.[103][104] 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’.[104] He observed:

The Constitution bench equated an ordinance with a temporary act enacted by the competent legislature. This approach, with respect fails to notice the critical distinction between an enactment of a competent legislature and an ordinance. Acceptance of the doctrine of enduring rights in the context of an ordinance would lead to a situation where the exercise of power by the Governor would survive in terms of the creation of the rights and privileges…The legislature may not have had an opportunity to even discuss or debate the Ordinance…. The enduring rights theory attributes a degree of permanence to the power to promulgate ordinances in derogation of parliamentary control and supremacy.[102]

He also observed that laying down ordinances before the Parliament is a mandatory constitutional obligation that cannot be bypassed. The judgment was recognised[105][103] for expanding the grounds of judicial review of an ordinance and limiting the scope of the mala fide exercise of ordinance promulgation.

Justice Chandrachud was part of the Constitution Bench in National Capital Territory v. Union of India,[106] 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,[107] 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:

…in defining the ambit of the constitutional powers entrusted to the Council of Ministers for the NCT and their relationship with Lieutenant Governor as a delegate of the President, the Court cannot be unmindful of the constitutional importance which has to be assigned to representative government. Representative government is a hallmark of a Constitution which is wedded to democracy for it is through a democratic form of governance that the aspirations of those who elect their representatives are met.

Justice Chandrachud authored a judgment with far reaching consequences in the political sphere in Shivraj Singh Chouhan. v. Speaker, Madhya Pradesh Legislative Assembly.[108] 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:

Where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review. The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons  which were relevant and germane to the exercise of the power. The exercise of such a power is not intended to destabilize or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it.[108]

In a first of its kind observation, Justice Chandrachud also noted the state of politics in the country and called for changes to strengthen the nature of the Indian democratic system in the following terms:

The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state our democratic politics. It is an unfortunate reflection of the confidence  which political parties hold in their own constituents and a reflection of what happens in the real world of the politics to lure away persons from rival camps… It is best that courts maintain an arm’s length from the sordid tales of political life. In defining constitutional principle, however, this Court must be conscious of the position on the ground as admitted by Counsel of both sides and an effort has to be made to the extent possible to ensure that democratic values prevail.[108]

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,[109] 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[110][111][112] 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.[111] Drawing on the work of Amartya Sen, he held that:

A meritocratic system is one that rewards actions that result in the outcomes that we as a society value…Thus, the providing of reservations for SCs and the STs is not at odds with the principle of meritocracy. “Merit” must not be limited to narrow and inflexible criteria such as one’s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration.[109]

In Chairman and Managing Director, Food Corporation of India v Jagdish Balaram Bahira,[113] Justice Chandrachud affirmed the principle that a person who receives the benefit of public employment on the basis of a false caste certificate is not entitled to protection in exercise of the equitable power conferred upon Courts. Justice Chandrachud held that the “withdrawal of civil benefits flowed as a logical result of the validation of a claim to belong to a group or category for whom the reservation is intended” and that “the selection of ineligible persons is a manifestation of a systematic failure and has deleterious effects on good governance.” Observing that the governing state legislation explicitly specified the consequences of relying upon a false caste certificate, the Court held that recourse to the inherent powers of the Supreme Court under Article 142 would not be justified. In the same vein, Justice Chandrachud observed that where there was a statutory bar to conferring benefits on the basis of a false certificate, administrative circulars and government resolutions, being subservient to legislative mandate, would not be permitted to cure the defect of a false caste certificate.[114]

Justice Chandrachud has also authored opinions in several commercial disputes and emphasized the principles of certainty and objectivity in the area of commercial law. He rejected the challenge by Adani Gas Limited[115] to the grant of authorisations for the construction and operation of consumer gas distribution networks in the state of Tamil Nadu. The dispute concerned the alleged addition of certain bidding criteria after the last date for bidding.  In upholding the decisions taken by the Petroleum and Natural Gas Regulatory Board, Justice Chandrachud noted that the   additional criteria had only been proposed by the regulator as an agenda item, but was never subsequently adopted. He also observed that when a tender is challenged by a bidder, the dispute remains solely between the bidder and the regulator, and the regulator's treatment of other bids that have no bearing on the disputed bid cannot be used to allege a case of arbitrariness against the regulator's actions.[116][117]

Justice Chandrachud also authored a judgment governing the liquidation of Super Bazar. The once-iconic Co-Operative Society had fallen on hard times and Writers and Publishers had won the bid to revive Super Bazar under a court regulated recovery scheme. However, an audit by the Comptroller and Auditor General of India found several accounting irregularities in the management of Super Bazar by Writers and Publishers.  Justice Chandrachud's judgment held that it would be against the first principles of insolvency if a resolution applicant were to be refunded their investment after a failed revival effort. His opinion directed that Super Bazar's assets be handed over to the official liquidator and disposed of in accordance with the statutory order of preferences.

Insurance Law

Justice Chandrachud has authored opinions regarding the interpretation of insurance contracts. In one such decision,[118] 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.[118]

In another decision,[119] Justice Chandrachud relied on the doctrine of uberrimae fidei and held that any suppression, untruth or inaccuracy in the statement in the proposal form by the insured is a breach of the duty of good faith and will render the policy voidable by the insurer. Justice Chandrachud noted that the system of adequate disclosures helps to narrow down the gap of information asymmetries between the parties and helps the insurers to assess their risk appetite. He held:

Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries

In a judgment reported in national media,[120][121][122][123][124] 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.[125] 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 also authored judgments on access to justice and the commitment to a transparent judicial system. In Swapnil Tripathi v. Supreme Court of India,[126] a three judge Bench of the Supreme Court ruled that proceedings of cases before it of constitutional and national importance must be streamed to the public. The judgment emphasized the right to know of every citizen and the principle of accountability of every institution.[127] In his concurring opinion, Justice Chandrachud emphasized the principles of open court and open justice and the public's right to know and drew upon comparative jurisprudence from across national frontiers.[128] He stated that:

Live-streaming of proceedings is crucial to the dissemination of knowledge about judicial proceedings and granting full access to justice to the litigant… Live- streaming is a significant instrument of establishing the accountability of other stake - holders in the justice process, including the Bar… Full dissemination of knowledge and information about court proceedings through live-streaming thus sub serves diverse interests of stake holders and of society in the proper administration of justice.[126]

The judgment was welcomed by lawyers[129][130] and academicians[131] alike. Justice Chandrachud also delivered a concurring opinion in the case of Central Public Information Officer v. Subhash Chandra Agarwal[132] 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[133][134] for evolving jurisprudence around the balancing of the right to privacy and the public interest. His opinion was also commented upon[133][135] 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:

As observed by Baroness Hale, both the right to privacy and the right to information are legitimate aims. In applying the principle of proportionality, the Information Officer must ensure that the abridgement of a right is not disproportionate to the legitimate aim sought to be achieved by enforcing the countervailing right.

Foremost amongst his notable dissents is his opinion in Puttaswamy (II) v. Union of India.[139] 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.[140] Some groups also raised significant privacy concerns with the government database that held the biometric and personal information of every individual in the country.

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’[141] noted numerous deficiencies in the proposed system and struck down in its entirety the Act as constituting a “fraud on the Constitution”.[142][143] In the celebrated dissent,[144][141][145] he based his analysis of the Aadhaar architecture on five key aspects - surveillance, proportionality, Money Bill, inequality and individual identity.

Justice Chandrachud noted that profiling and surveillance of individuals are possible under the Aadhaar framework as meta data can be used to track and profile people, third-parties can access the centralized database and the linking of databases may take place. He held:

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.[139]

At the time when the case was being heard before the Supreme Court, whistleblowers had warned of the possible implications of the infrastructure in creating a surveillance state.[146] Following the judgment, academicians documented the growth in state surveillance[147][148]

He held that informational self  determination (as a facet of privacy) and bodily integrity impart to the biometric details of every person a high degree of privacy. He held that the absence of consent within the Act, the extent of information disclosed, the expansive scope of the term “biometrics”, the burden placed upon the individual to update her own biometrics, and lack of access to the record, cumulatively constitute a serious infringement of privacy.[141]

Justice Chandrachud drew from academic literature as well as jurisprudence across national frontiers on the proportionality standard and held that the burden to justify that the method adopted lies on the state and it must be demonstrated that the chosen method is both necessary and the least intrusive manner of achieving the stated objective. Circumspect of the Aadhaar infrastructure in plugging loopholes in welfare leakages, he held that:

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.[139]

As part of his analysis, he noted the potential of the Aadhaar infrastructure to further bread inequality and the burden on the state to remedy any potential failings prior to the implementation of a nationwide infrastructure. He held:

Technological error would result in authentication failures. The concerns raised by UIDAI ought to have been resolved before the implementation of the Aadhaar project. Poor connectivity in rural India was a major concern. The majority of the Indian population lives in rural areas. Even a small percentage of error results in a population of crores being affected. Denial of subsidies and benefits to them due to the infirmities of biometric technology is a threat to good governance and social parity… No failure rate in the provision of social welfare benefits can be regarded as acceptable. Basic entitlements in matters such as food grain, can brook no error. To deny food is to lead a family to destitution, malnutrition and even death.[139]

Considered the ‘heart’ of his dissent,[149] 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.”[139] 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 proceeded by affirming that there is a degree of “constitutional trust” that attaches to a certificate by the Speaker of the House certifying a bill as a Money Bill and is open to judicial review:

The purpose of judicial review is to ensure that constitutional principles prevail in interpretation and governance. Institutions created by the Constitution are subject to its norms. No constitutional institution wields absolute power. No immunity has been attached to the certificate of the Speaker of the Lok Sabha from judicial review, for this reason… Constitutional courts have been entrusted with the duty to scrutinize the exercise of power by public functionaries under the Constitution. No individual holding an institutional office created by the Constitution can act contrary to constitutional parameters... If our Constitution has to survive the vicissitudes of political aggrandisement and to face up to the prevailing cynicism about all constitutional institutions, notions of power and authority must give way to duties and compliance with the rule of law[139]

Justice Chandrachud embarked on an analysis of the origins and rationale of bicameralism to conclude:

Bicameralism, when entrenched as a principle in a constitutional democracy, acts as a check against the abuse of power by constitutional means or its use in an oppressive manner. 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. A bicameral national parliament can hold the government accountable and can check or restrain the misuse of government power. Among its other roles is that of representing local state units, acting as a body of expert review, and providing representation for diverse socio-economic interests or ethno-cultural minorities.[139]

After embarking on a comparative analysis of bicameralism across the world, Justice Chandrachud grounded Indian bicameralism in both a commitment to a federal polity as well as participative governance to hold that the Rajya Sabha is a “symbol against majoritarianism”. He extensively analysed Article 110 of the Indian Constitution and emphasized that any bill within the ambit of Article 110 must contain “only provisions” dealing with the matter specified therein. Laying emphasis on the use of the words “if” and “only” within the provision, he cautioned that judges “cannot rewrite the Constitution, particularly where it is contrary to both text, context and intent.” He noted that to allow bills that traverse outside the scope of Article 110 to be passed as money Bills would have “consequences in terms of the nature of the Bill and the legislative participation of the Rajya Sabha,” and “reduce bicameralism to an illusion.” He held:

A Bill, to be a Money Bill, must contain only provisions which fall within the ambit of the matters mentioned in Article 110…The Lok Sabha cannot introduce and pass a legislative measure in the garb of a Money Bill, which could otherwise have been amended or rejected by the Rajya Sabha. Bicameralism is a founding value of our democracy. It is a part of the basic structure of the Constitution. Introduction and passing of a Bill as a Money Bill, which does not qualify to be a Money Bill under Article 110(1) of the Constitution, is plainly unconstitutional… Introducing the Aadhaar Act as a Money Bill has bypassed the constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act as a Money Bill is an abuse of the constitutional process. It deprived the Rajya Sabha from altering the provisions of the Bill by carrying out amendments.. Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution… This debasement of a democratic institution cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures.[139]

One academician wrote shortly thereafter that Justice Chandrachud's reading of the constitutional provision and assessment of the Aadhaar Act upheld “the delicate balance of bicameralism” which lies at the heart of India's parliamentary democracy”[150]

Justice Chandrachud's judgment also analysed the intersection between identity and individuals. The dissent was noted for the emphasis on the protection of individual identity. Emphasising on the plurality of identities of an individual, he observed that:

Technologically, at this level, Aadhaar was to be a means of identification. Yet at another level, the Aadhaar project also offered itself as providing a documentary identity to persons who may not have possessed one at all... Identity includes the right to determine the forms through which identity is expressed and the right not to be identified. That concept is now “flipped” so that identification through identifiers becomes the only form of identity in the time of database governance. This involves a radical transformation in the position of the individual…Identity is a plural concept. The Constitution also recognizes a multitude of identities through the plethora of rights that it safeguards. The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right if an individual to identify himself/herself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a prof of identity. It must not be allowed to obliterate constitutional identity.

He analysed the intersection between law and technology and observed that the biometric technology “which is the core of the Aadhaar programme is probabilistic in nature, leading to authentication failures.” He observed that:

Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology.

Justice Chandrachud's dissent has received academic analysis[144][151] 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’,[152] ‘fiery dissent’,[153] ‘historic dissent’,[144] ‘stinging dissent’[154] and ‘lone yet powerful dissent’.[155] Some invoke in reference to the dissent the famous lines of Chief Justice Charles Hughes[156][157] 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.

In the judgment concerning the constitution validity of the Jamaican National Identification and Registration Act, Chief Justice Sykes relied  on Justice Chandrachud's dissenting opinion to strike down the Act.[158][159][160][161][162] He commended the dissent in the following terms:

In words, which I respectfully wish to adopt as my own, the learned Judge [i.e., Chandrachud J.] summarised the overall constitutional failings of the Aadhaar scheme thus … ‘the technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself or himself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity…From reading the judgments, in this case, Dr Chandrachud J, in my respectful view, demonstrated a greater sensitivity to the issues of privacy and freedom that is not as evident in the judgments of the majority of the other judges who delivered concurring judgments. His Lordship had a clear-eyed view of the dangers of a state or anyone having control over one’s personal information and generally, I preferred his approach to the issue over that of the other judges… I must also say that in the application of the standard I prefer the reasoning of Dr Chandrachud J to that of the majority.

One constitutional law expert observed[163] that:

…a dissent is not limited to a footnote in the judicial lore of a nation, waiting for the years to pass by until the “intelligence of a future day” dawns. Sometimes, like the swallow flying south, a dissent becomes part of the global migration of ideas. It finds fertile soil far from home, there to bloom into the full richness that it has been denied in its own native environment… Sometimes, we need friends and colleagues in other parts of the world to hold up the mirror that we are unwilling or unable to look into. Perhaps it is the fate of the Aadhaar Dissent to travel around the world, a light in dark places, long before it is recognised by the brooding spirit of law in its homeland, and the error is corrected at last.

Later, Justice Chandrachud's observations on the aspect of the Money Bill were resurrected by a Constitution Bench in Roger Mathew v South Indian Bank Ltd.[164] Chief Justice Gogoi, writing for the majority held that the law on Money Bills must be “given an appropriate meaning and interpretation to avoid and prevent over-inclusiveness or under-inclusiveness”. Noting deficiencies in the reasoning of the majority in the Aadhaar judgment and referring the question of law on Money Bills to a Bench of a higher strength, he stated:

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.[164]

Justice Chandrachud agreed with the majority that the law on the Money Bills must be clarified. Consequently, the matter is pending further consideration by the Supreme Court.[165]

Justice Chandrachud delivered a dissent in Romila Thapar & Ors.  v. Union of India,[166] 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”.[167]

His dissent was  reported  for upholding the freedom of speech and the principle of fairness under Article 14 and 21 of the Indian Constitution.[168][169][170] He observed that “dissent is the safety valve of democracy. If dissent is not allowed, then the pressure cooker may burst”. He also opined that it was necessary to draw a balance between dissent and unlawful activities. He held that:

Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Where, however, the expression of dissent enters upon the prohibited field of an incitement to violence or the subversion of a democratically elected government by recourse to unlawful means, the dissent ceases to be a mere expression of opinion. Unlawful activities which violate the law have to be dealt with in accordance with it.[166]

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.[171] 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”.

Justice Chandrachud, along with Justice Rohinton Fali Nariman delivered a dissent[172][173] in Kantaru Rajeevaru v. Indian Young Lawyers Association.[174] He held that the decision of five judges in the Sabarimala case which held that women between the age of ten and fifty shall not be denied entry to the Sabarimala temple is not a fit case for the exercise of review jurisdiction as the judgment does not suffer from an error apparent on the face of record. The dissent observed that the executive is under a constitutional obligation to implement the decisions of the Supreme Court even if they were not parties before them.[175][176][177] Justice Nariman observed:

Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things.[174]

Justice Chandrachud authored the minority opinion for himself and two other judges in Abiram Singh v. C.D Commachen[178] 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.[179] 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.[179] Justice Chandrachud wrote:

...the  Constitution… recognises the position of religion, caste, language and gender in the social life of the nation. Individual histories both of citizens and collective groups in our society are associated through the ages with histories of discrimination and injustice on the basis of these defining characteristics…[178]

While “the majority viewed group identities as sites of division and fracturing of the fragile democratic consensus, the dissent questioned the very existence of any such consensus.”[179] Justice Chandrachud held, as a noted columnist wrote, that with the coming of democracy, these identities had become the sites of redressing historical discrimination through political mobilization. To now deny that opportunity would be to simply perpetuate a status quo built upon exclusion and marginalization.[179]

In Jindal Stainless Ltd. v. The State of Haryana,[180] Justice Chandrachud authored the minority opinion on the constitutional validity of entry tax imposed by states. He differed from the view of the majority which held that free trade throughout the territory under Article 301 of the Constitution of India does not mean freedom from tax and observed that such a position violated constitutional principles. He held that entire nation must be viewed as one economic unit in the following terms:

Article 301 sub serves the constitutional goal of integrating the nation into an economic entity comprising of a common market for goods and services.

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