How CJ Chandrachud belied liberal hopes for a strong judiciary that could stand up to Modi

In October, a month before he was due to retire from the Supreme Court, Chief Justice of India Dhananjay Yeshwant Chandrachud admitted at a speech at a law school that he has been wondering about how history would view his tenure.

His anxieties might not be misplaced.

Through his term as chief justice of India, Chandrachud, whose last working day was Friday, flattered to deceive. Held up as a liberal hope when he took oath in November 2022, Chandrachud at best maintained the status quo when it came to judicial independence. In fact, he might even have made things worse.

Chandrachud had been a liberal poster boy since his elevation to the Supreme Court bench in 2016. Erudite, polite to a fault, media friendly, the son of a chief justice of India and possessed of an elite education, Chandrachud had brandished his progressive credentials in a series of landmark judgements in which he displayed an expansive sense of Constitutional jurisprudence.

Expectations were heightened by the fact that the previous five chief justices with substantial tenures either had controversial or unremarkable runs. (Chandrachud’s immediate predecessor, Justice UU Lalit, is not being included here, given his short tenure.) With a two-year tenure ahead of him – the longest for a chief justice of India in 14 years – Chandrachud was widely expected to turn things around.

However, he failed to rise to the occasion. Benches led by him largely favoured the ruling party and so did his calls as master of roster, deciding which judge would hear which case and when a particular case would be heard. Moreover, Chandrachud’s public outreach largely aligned with the politics of the ruling party.

Chandrachud was eloquent in his articulation of Constitutional principles but these seem to have not made much of an impact on his tenure as chief justice of India.

Liberal hero

Before becoming chief justice, Chandrachud’s liberal image was primarily built by his landmark judgements as a judge. These orders largely advanced the constitutional values of individual dignity, liberty and autonomy.

He was part of the Constitution benches that recognised privacy as a fundamental right, decriminalised homosexuality and adultery, struck down the bar on women entering the Sabarimala temple and upheld women’s choice in choosing marriage partners.

In a significant note of dissent in 2018, he held that the arrests in the Bhima Koregaon conspiracy case were illegal. The Bhima Koregaon conspiracy case centres on 16 academics and activists accused of inciting caste violence during a 2018 Dalit commemoration in Maharashtra. The authorities allege these activists had conspired to destabilise the government and had Maoist links. Critics argue that the charges are intended to silence dissent rather than address actual security threats

In another dissenting opinion that year, he held that the Aadhaar Act was unconstitutionally passed as a money bill.

These judgements earned him praise for prioritising the Constitution over consensus with fellow judges.

However, this record is tempered to some extent by his judgement dismissing the demand for an inquiry into the death of a judge who was hearing a fake encounter case involving Union Home Minister Amit Shah as well as the Ayodhya land dispute judgement, which is believed to have been authored by Chandrachud.

Both judgements were severely criticised for resting on faulty legal grounds and were advantageous to the ruling Bharatiya Janata Party.

Judgments helping the executive

His appointment as chief justice of India, however, belied his liberal career as a judge. Chandrachud’s Supreme Court was expected to stand up to a domineering Narendra Modi-led Union government but instead delivered several questionable decisions that rubber stamped executive decisions and failed to do enough to contain overreach by the powerful ruling party.

A five-judge bench he led issued a judgement last year on petitions about Maharashtra’s 2022 political crisis. The judgement found that the Maharashtra governor's decision to call a floor test in the legislative assembly was illegal. This floor test ultimately led to Uddhav Thackeray’s resignation as chief minister.

However, the court expressed helplessness in undoing the effect of that illegal act – the formation of a new government backed by the BJP. As a consequence, nothing changed on ground.

Earlier last year, another five-judge bench judgement written by him upheld the Delhi government’s powers to control civil servants and the day-to-day administration of the National Capital Territory of Delhi. However, in a significant blow to federalism, the judgement also said that Parliament could enact a law granting executive powers on any aspect of administration of Delhi to the lieutenant governor of Delhi, who is appointed by the Centre.

A week after the judgement, the Union government promulgated an ordinance that significantly diluted the authority of the Delhi government and gave the lieutenant governor the final say on executive affairs.

Later that year, another five-judge bench led by Chandrachud upheld the abrogation of Article 370 of the Constitution that allowed Jammu and Kashmir a certain degree of autonomy within the Indian Union. However, the bench strangely chose not to deal with the question of whether the Parliament’s decision to downgrade the state of Jammu and Kashmir to two Union territories was constitutionally permissible.

Chandrachud has emboldened Hindutva groups seeking legal approval to claim sites historically contested by religious communities, such as mosques. Earlier this year, his bench permitted a survey to be carried out at the Gyanvapi mosque in Varanasi to examine whether the mosque is built on a temple.

The bench has evaded hearing the challenge mounted to this survey on the basis of the Places of Worship (Special Provisions) Act, 1991. The act mandates maintaining the religious character of places of worship as they stood on August 15, 1947.

Another Chandrachud-led bench has also remained sitting on challenges to the constitutionality of the act.

This inaction has weakened the act’s protective intent, evident from the survey of the Gyanvapi mosque in Varanasi and petitions seeking the same at the Shahi Idgah mosque in Mathura.

In January, a Chandrachud-led bench of the court refused to order an investigation into the allegations of stock price manipulations against the Adani group of companies. This, despite the Securities and Exchange Board of India having not submitted to the court a report investigating these allegations that the court had tasked it to prepare. The bench subsequently rejected a petition seeking review of the judgement.

Scroll has reported extensively on the seeming impropriety of Board chief Madhavi Buch investigating the Adani group due to apparent financial links between the two.

Earlier this year, a Chandrachud-led bench declared the electoral bonds scheme unconstitutional and ordered the publication of details regarding donors and recipients under the scheme. This was seen as a rare instance of him delivering a verdict adverse to the Union government.

A series of investigative reports by a collective of independent media outlets, including Scroll, revealed not only that BJP was the largest beneficiary of the scheme but that there were several bonds possibly given as quid pro quo arrangements by corporations to political parties, including the BJP.

However, in February, another bench led by Chandrachud refused to set up an investigation into alleged quid pro quo arrangements involving electoral bonds. He also refused to direct the authorities to recover funds that political parties had received through electoral bonds or to reopen their income tax assessments.

Master of roster misuse

A further blot on Chandrachud’s legacy as chief justice is his role as the so-called master of roster, an informal term for the chief justice’s authority as to when cases would be listed and before which bench of the court. On assuming office, Chandrachud promised that he was “keeping a close watch” on the listing of cases, describing it as his “first priority”. He promised uniform and predictable listing of cases.

However, as Scroll reported earlier this year, the process for listing of cases in the Supreme Court continued to remain shrouded in mystery under Chandrachud. There is no certainty of matters being listed on their scheduled date and listing irregularities in high-profile matters are common.

In India’s justice system, the choice of benches for a case can make a difference. Thus, how a bench is constituted is a significant matter.

On this too, Chandrachud’s tenure has come in for scrutiny. For example, in his public addresses, he emphasised the principle that “bail is the rule, jail is the exception”. However, he listed several bail cases involving political dissenters or opposition members before Justice Bela Trivedi. Trivedi has a history of failing to grant bail.

Activist Umar Khalid, controversially imprisoned in the Delhi riots larger conspiracy case and academic Hany Babu, arrested in the Bhima Koregaon case, were among the many who withdrew their bail applications from the Supreme Court when they were listed before Trivedi.

In December, Senior Advocate Dushyant Dave and public interest lawyer Prashant Bhushan wrote separate letters highlighting irregularities in case listing at the Supreme Court and the allocation of particular cases to Trivedi’s bench.

Chandrachud may be credited for continuing his predecessor Lalit’s practice of constituting a large number of Constitution benches to hear legally complex cases. However, an analysis by Supreme Court Observer showed that while the benches constituted by Lalit broadly followed the principle of seniority, Chandrachud’s approach to Constitution bench formation did not.

He also kept in cold storage several cases that may have been inconvenient for the ruling party at the Centre. Challenges to several anti-conversion laws in BJP-ruled states remain pending. Public interest litigation on delayed judicial appointments has also stalled after being controversially de-listed from a bench led by Justice SK Kaul.

The Uddhav Thackeray Shiv Sena faction's plea against the Maharashtra speaker’s refusal to disqualify Eknath Shinde faction members is unresolved. Cases challenging the criminalisation of triple talaq and the restitution of conjugal rights were also left partially heard, with no follow-up hearings.

For two years, Chandrachud did not touch the case demanding an investigation into the Union government’s alleged use of Pegasus spyware against Indian citizens. He waited until last month to constitute a bench to hear petitions demanding marital rape be criminalised, before deciding after a single hearing that the bench did not have the time to decide the case before he was to retire. The case will now be passed on to the next chief justice, to be heard by a fresh bench.

Judicial appointments

Chandrachud’s handprints will remain on the Supreme Court for several years after he retires since more than half of the sitting judges in the court today were appointed by collegiums he led.

However, none of these appointees were women. This is ironic considering the numerous times he has spoken about gender imbalances in the judiciary.

Vacancies of High Court judges have increased slightly during Chandrachud’s tenure: from 30.2% in November 2022 to 31.5% as of November 1, 2024. This is because the Union government has not acted on many appointment recommendations by the Chandrachud-led Supreme Court collegium.

Despite the government’s legal obligation to follow these recommendations, the Chandrachud-led court has not pressed contempt charges against it for these delays.

More damningly, a report by Caravan claimed that Chandrachud had developed an informal process of seeking prior approval from the Union government before the collegium would recommend anyone for appointment as a judge. This has granted the government control of judicial appointments and undercuts judicial independence.

Platforming BJP’s politics

Chandrachud’s tenure will also be remembered for his prominent public profile. In addition to his numerous public lectures and media interviews, he has been criticised for publicly playing up faith and showcasing the BJP’s politics.

In January, for example, he embarked on a well-publicised visit to temples in Gujarat. In September, Prime Minister Narendra Modi visited Chandrachud’s home, where they participated in a ceremony worshipping the Hindu deity Ganesh in front of cameras. Modi was dressed in traditional Maharashtrian attire. The political symbolism of this, two months before the Maharashtra assembly elections, was widely commented on.

Last month, Chandrachud said at a public event that he had prayed to god for a solution to the Ayodhya land dispute case.

Disappointing legacy

The Lady Justice statue at the Supreme Court, commissioned by Chief Justice Chandrachud and unveiled on October 15, has sparked debate over its symbolic choices. Without a blindfold, it raises questions about impartiality. With the Constitution replacing the traditional sword, some argue that the statue lacks a clear assertion of judicial authority.

However, this controversial statue might end up capturing the legacy of Chief Justice Chandrachud: it makes a loud show of progressiveness but, in essence, is not very different from its predecessor.