Rohin Bhatt*
Introduction
Tracing the judicial legacy of a judge ought not to be done through his out-of-court utterances and appearances, but only through the jurisprudence that the judge has laid down. For after all, the primary job of the judge is to perform their judicial functions. Chief Justice Chandrachud’s tenure was complex and several people of far more learning than I have written on it. In this piece, I have been given the quixotic task of analysing the complex tenure of Chief Justice Chandrachud specifically in respect of his queer rights jurisprudence.
However, I want to begin with a caveat. Rights cannot, and do not exist in pigeonholes. Human rights are interconnected, and they are indivisible. While the view that rights exist in silos was first accepted by the Supreme Court in AK Gopalan v Union of India (1950), this view was rejected by Justice Chandrachud himself in Puttaswamy v Union of India (2012). Nevertheless, there is little doubt, that over the two-year tenure of Chief Justice Chandrachud, fundamental rights were significantly watered down by him through various acts of omission and commission.
Let us look at a few examples: in his role as the master of the roster, cases of personal liberties, such as Umar Khalid, ended up before benches that were notoriously not pro-liberty, while cases such as those of Mahesh Raut (who had been granted bail by the Bombay High Court which was strangely stayed by the Supreme Court over a year ago), were simply not taken up. Similarly, other cases, arguably in violation of the Supreme Court’s own procedure, arising out of the same FIR in the Bhima Koregaon case have been assigned to a different bench (Sunderesh and Aravind Kumar JJ.). In his judicial role as well, Justice Chandrachud significantly damaged the fundamental rights jurisprudence—for example, in cases of arbitrary demolitions of homes, he refused to take up the cases of demolitions and domicide until his last days in office, even as a co-ordinate bench was already seized of the issue (In re Manoj Tiberwal Akash was pronounced on 06 November 2024, only a few days before his retirement while the matter was filed in 2020). Further, Property Owners Association v. State of Maharashtra, which drove a stake through the heart of India’s founding policy as a welfare state, giving a judicial green signal to a neoliberal economy, was one of the last marks he left on the court.
Analysing The Jurisprudence
It is in this background of the larger withering down of rights in which I analyse the former Chief Justice’s record on queer rights. At the outset, some senior lawyers like Indira Jaising have called him the "New Right liberal" who consists of two parts: “the liberal and the divinely driven— one that is modern and yet able to rely on a norm above the Constitution to perform the judicial function.” Others like Senior Advocate Mohan Katarki have called him a neo-naturalist to whom “(the) morality of law is taught by both reason and divine revelation.”
Before I try to analyse his tenure, however, there are three major judgements of Justice Chandrachud’s that warrant analysis for the purposes of this post: First, his decision in Navtej Singh Johar where he, along with Justices Misra, Khanwilkar, Nariman, and Malhotra decriminalised homosexuality; Second, his dissenting opinion in Supriyo Chakraborty denying that there was a fundamental right of marriage to queer couples; and finally, the decision in Devu G. Nair on the protection of runaway couples.
While Navtej was being argued, it was clear that the lawyers there were batting on a winning wicket. In Puttaswamy, which had been argued before, 9 judges had already held that Suresh Kumar Koushal v Naz Foundation (2013) was wrongly decided. The majority opinion which had given this finding was authored by Justice Chandrachud, who wrote the judgement on behalf of Chief Justice Khehar and Justices Agrawal, Nazeer, and himself. Calling Koushal a discordant note in Part I of this judgement, Chandrachud wrote, “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. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution…The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime.”
Naturally, when the judgement in Navtej came, it was of little surprise. However, Justice Chandrachud was perhaps the only judge who grabbed onto the right to health aspect and HIV prevention efforts of Section 377 of the Indian Penal Code (IPC), which is an oft-ignored argument. This was important because most of the earlier opposition to Section 377 was touted as a disruption to social order, and even linked homosexuality with an increase in AIDS patient burden. Towards the end of the judgement, he held, “the Constitution has within it the ability to produce a social catharsis. The importance of this case lies in telling us that reverberations of how we address social conflict in our times will travel far beyond the narrow alleys in which they are explored.”
However, when it came to the "social conflict" of what the contents of marriage were, and whether queer people should be allowed to marry, Justice Chandrachud faltered in Supriyo Chakraborty v Union of India (2023). Ignoring his own decisions in Shafin Jahan v Asokan KM (2018) and Puttaswamy, he sided with the majority, holding that the right to marriage was not a fundamental right. This was, as I call it, a judicial punch in the gut. Not only will this judgement, where all five judges have held that the right to marry is not a fundamental right, have cascading effects for the queer community, it will also pre-empt the challenge to the constitutional validity of the so-called "love jihad laws" which are pending before the Supreme Court, because now, the Parliament has absolute powers to decide who can enter a marriage, how can marriage be exited, and the conditions for marrying. The Court has refused to exercise its powers of judicial review by holding that it has ‘institutional limitations’. Strangely, Justice Chandrachud also held that recognising the right to marry as a fundamental right will force the law makers to create an institution of marriage, misreading the arguments of the petitioners who asked merely for an expansion of the existing definition of marriage. However, he passed a slew of directions which the majority opinions of Bhat and Kohli JJ disagreed with; but nevertheless saw movement on the executive front through the issuance of advisories and the formation of a committee under the Secretary. While the executive did this performatively, it is interesting because this forms part of a minority opinion, and hence, it was not bound to do so. Be that as it may, the advisories that have come, have not changed the law but merely clarified it, with little change on the ground.
In the final act of this play, Justice Chandrachud did make getting protection orders from the police easier in Devu G. Nair v The State of Kerala (2024). Emphasising on the use of inclusive pronouns, a safe environment, and eschewing homophobic or transphobic views by judges, he also held that the Courts must not order counselling or parental care of the detenu. He also made it mandatory to grant interim police protection when the couple was queer, inter-faith, or inter-caste.
Is There a Trend?
What then are the trends in his method of adjudication? Given that there are several allegations pointed out by journalists like Saurav Das of his close proximity with the executive, and despite vehement disavowal of the same by Chandrachud himself, his jurisprudence reflects the uncomfortable reality that when the executive pushed back on the Court, he buckled. When they did not, he drove the jurisprudence forward. Navtej is a prime example. Another such example is X v. Principal Secretary, Health, where he expanded the scope of the Medical Termination of Pregnancy Act to transgender and gender-diverse patients with uteri. On the other hand, when the executive pushed back, like in Supriyo, he sided with the executive. This also happened in the elevation of judges, including Saurabh Kirpal, whose name has been reiterated by the collegium (of which Justice Chandrachud was a part), yet remains unelevated due to his sexual orientation.
What does this close proximity tell us then? It tells us that his tenure was about expanding jurisprudence, but not enforcing it; It was about concerns of his legacy while presiding over a Supreme Court that was accused rightly, of being pro-executive and of judicial evasion; It was about him not being able to take his brother judges along with him, as was evident by the hitherto unknown sharp exchange in the judgements in Supriyo, and him being publicly castigated by two other judges in Property Owner’s Association (Nagarathna J chided him for arguing that Justice Krishna Iyer did a disservice to the Constitution, while Dipankar Dutta J laid down a detailed list of dates which disallowed judges to deliberate on drafts). Justice Chandrachud has left the system more divided and less likely to stand up to the other branches, while they refuse to show the judiciary due deference.
Conclusion
So how does one analyse a tenure like this? There seems to be no clear answer, and a range of people have categorised him differently. I prefer here, to adopt, Prof. Pratap Bhanu Mehta’s analysis of the man, for I find it most appropriate - “The scorecard approach in relation to Justice Chandrachud rests on a category mistake. It goes something like “X number of good judgments, Y number of dubious ones.” Justice Chandrachud was more artful than this kind of arithmetic would suggest. Like the Prime Minister, he could throw a dollop of glossy paint on a building while letting the foundations rot with judicial termite. In retrospect, the good judgments performed exactly that function: They keep the veneer and the form alive, to allow us to pretend that we might still get justice from the Chief Justice of India.”
Ultimately, we must look at Justice Chandrachud's tenure as one that has damaged rights overall, leaving our judiciary poorer in the eyes of its citizens.
*Rohin Bhatt is a queer, non-binary lawyer who practices in the Supreme Court of India. Bhatt's work has spanned not just activism inside the Courtroom but also outside it, along with writing extensively on issues of queer rights and human rights. Bhatt was a key part of litigating teams arguing for equality of marriage for LGBTQ citizens, and is the author of The Urban Elite v Union of India.
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