Performative Justice: The Equivocations of DY Chandrachud

The profile was originally published in The Caravan magazine. Read here.

{ONE}

ON 13 MARCH 2016, the Allahabad High Court began a year-long celebration of its sesquicentennial anniversary. Among the five oldest high courts, it was established in 1866 and, today, stands as the largest, with a sanctioned strength of 160 judges. At the time, it was headed by Dhananjaya Yeshwant Chandrachud, who would be elevated to the Supreme Court two months later. The celebration was expected to be a grand affair. “It was a function like never seen before,” Shashi Tiwari, the vice-president of the high court’s bar association, recalled. The event was studded with bigwigs from the legal fraternity—including the chief justice of India, TS Thakur—but there were very few political figures, besides President Pranab Mukherjee.

Tarun Agarwala, the judge who chaired the organising committee, told me that there was initially some discussion about not sending formal invitations to any politicians. “It was a high-court function, and there was no reason to involve politicians,” he said. Another senior judge who had served in the high court at the time told me, on condition of anonymity, that this was a “conscious decision” by Chandrachud. “He was clear that the separation of powers required him to do this,” they said. The concept of separation of powers mandates that the three branches of government—the legislative, the executive and the judiciary—
function independently. “Neither the chief minister nor the prime minister of India was invited,” the judge said. “But, since the president was attending, protocol required the state’s chief minister and governor to accompany him.” DV Sadananda Gowda, the union law minister at the time, was also invited as a formality, but the event remained devoid of major political participation. According to the judge, this was a “testament to Chief Justice Chandrachud’s commitment to judicial independence.”

Today, the scene is different. In September 2024, Chandrachud, now chief justice
of India, performed an aarti with Prime Minister Narendra Modi during Ganesh
Puja at his official residence in Delhi. Chandrachud, lanky and bespectacled, stood
next to Modi, who was dressed in traditional Maharashtrian attire, singing
devotional songs. Cameras captured every moment from multiple angles. The
political undertones were clear. Modi tends to adorn regional attire when
campaigning for elections, and, with Maharashtra’s elections approaching, his
choice of dress alongside a Maharashtrian chief justice was certainly well timed.
This meeting splashed across television screens and on social media. It was a
particularly damning moment in Chandrachud’s tenure, and that too, so close to
the end. Whispers soon circulated. Had Modi arrived at Chandrachud’s residence
unannounced? Or had the CJI invited him? People wondered why Chandrachud had not politely declined or, at the very least, barred the broadcast of the private meet. “Come on! If the prime minister was visiting, his security detail would first cleanse the parameter, and you think Chandrachud wouldn’t be informed? It’s not like Modi would show up
unannounced,” a senior lawyer told me. “It wasn’t a public event; it was a private
meeting between two constitutional officeholders. They should have considered
the public perception! Perception is everything when it comes to the judiciary.”
Opposition leaders and senior lawyers pointed out the “troubling message” the
meeting sent, with the chief justice presiding over a politically sensitive case
concerning Maharashtra. It involved defections, allegedly engineered by Modi’s
Bharatiya Janata Party, that resulted in the toppling of the state government in

He was the youngest to hold that position at the time, overseeing a politically
volatile region. But his tenure there was largely uneventful. In November 2014, he
directed Aligarh Muslim University to allow female students from its constituent
Abdullah Women’s College to enter the central library, opposing the vice-
chancellor’s claims that allowing them would lead to a “rush of male students.”
While Chandrachud garnered praise for taking this progressive stand, he did
something the following year that many criticised as regressive. In response to a
petition asking the court to compel madrasas in Uttar Pradesh to unfurl the
national flag on Independence Day and Republic Day—despite no evidence of
madrasas not doing so—his bench mandated that “all institutions controlled or
aided by the state government” observe the flag-hoisting ceremonies but made
sure to emphasise that the decision should not be interpreted as a judgment on any
community’s patriotism.

Several Muslim organisations were surprised by this order. “Indians are proud of
the tricolour and their independence,” Khalid Rasheed, a member of the All India
Muslim Personal Law Board, said in a media interview. “The ulemas had
participated in the freedom struggle wholeheartedly and many of them even laid
down their lives for it.” According to him, there was “no point in issuing such an
order.”
The order came at a time when India was grappling with jingoism, following
Modi’s election victory, and Muslims were regularly being questioned about their
loyalty to the nation. They were facing greater threats and attacks from hardline
Hindu factions, sometimes affiliated with the RSS and the BJP. In BJP-ruled states, religious tensions were simmering. Cases of Muslims being lynched on the
suspicion of storing or eating beef, or stealing cows, were rising. A few days after
the order, Mohammed Akhlaq, an agricultural labourer in his fifties, was lynched
by a mob at his home in Uttar Pradesh’s Dadri district.

AROUND THIS TIME, the Supreme Court was embroiled in a standoff with the
Modi government over judicial appointments. The government’s first legislative
action had been to dismantle the collegium system that allowed judges to appoint
other judges. The government passed a bill establishing the National Judicial
Appointments Commission, a body that included representation from all three
government branches, along with two “eminent persons,” reducing the CJI’s
primacy in judicial appointments.
This reform had been part of the BJP’s agenda for years. “There are two kinds of
judges: those who know the law and those who know the law minister,” Arun
Jaitley said in 2012, when he was leader of the opposition in the Rajya Sabha. “We
are the only country in the world where judges appoint judges,” he added. “Pre-
retirement judgments are influenced by post-retirement jobs.” Nitin Gadkari, the
party president at the time, even proposed a two-year cooling-off period for judges
after retirement to prevent government influence on the judiciary.
The NJAC was approved by parliament, but the Supreme Court ruled it
“unconstitutional and void,” in October 2015. The government reacted with anger.
Its minister of communication, Ravi Shankar Prasad, called the verdict “a setback
for parliamentary sovereignty.” Tensions escalated, with the government stalling
judicial appointments.
In April 2016, the CJI, TS Thakur, publicly broke down in tears at an event
attended by Modi, highlighting the critical shortage of judges and the mounting
backlog of cases. “It is not enough to criticise,” he said, imploring the prime
minister to take action. A month later, Thakur’s collegium recommended
Chandrachud’s elevation to the Supreme Court. With only 25 out of the 31
Supreme Court seats filled at the time, it was crucial that the union government
relented. The centre finally cleared the path, and Chandrachud was appointed on
13 May—putting him on track to be CJI down the line. A new and eventful chapter
awaited him in Delhi’s Tilak Marg.
{THREE}
IT WAS A CHILLY WINTER morning on 12 January 2018. The four seniormost
sitting judges after the CJI had decided to do something unprecedented: publicly
revolt against their chief, Dipak Misra. The four judges—Jasti Chelameswar,
Ranjan Gogoi, Madan Lokur and Kurian Joseph—were concerned about Misra
constituting handpicked benches for politically sensitive cases. They alleged that
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these cases were being assigned to junior judges with a “political bias.” The
allegation of “bench-fixing,” though not explicitly spelled out, was the message
between the lines. “It is with no pleasure in our hearts that we were compelled to
take this decision to call for this press conference,” Chelameswar said to the
journalists who had gathered at the lawn of his official residence. “We tried to
collectively persuade the chief justice that certain things are not in order and
therefore you should take remedial measures … Unfortunately, our efforts failed.”
On 12 January 2018, four Supreme Court justices, Kurian Joseph, Jasti Chelameswar, Ranjan Gogoi and Madan Lokur (left to
right), addressed the media about irregularities in the functioning of the apex court, including the role of the chief justice. AP
PHOTO
Matters seemed to have reached a boiling point in December 2017, when Misra
assigned a petition seeking an independent investigation into the death of BH Loya
to a two-judge bench headed by Arun Mishra, considered the junior judge with a
“political bias.” Two years later, Mishra was widely panned for praising Modi as an
“internationally acclaimed visionary” and a “versatile genius.”
Loya reportedly died of a heart attack in Nagpur, where he was attending a
wedding. At the time, he was the judge in a special CBI court overseeing a single
case: the alleged 2005 extrajudicial killing of Sohrabuddin Sheikh by the Gujarat
Police. The main accused was Amit Shah, who was Modi’s deputy in the state
home department and is now the union home minister. The Supreme Court had
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ordered that the Sohrabuddin case be transferred out of Gujarat to prevent political
interference and that a judge should oversee the trial from start to finish. But the
first judge assigned to the case in Maharashtra was transferred after he summoned
Shah to court. He had apparently requested this himself. Loya took over the case
and, according to his family, was allegedly offered Rs 100 crore by Mohit Shah, the
chief justice of the Bombay High Court at the time, to exonerate Shah.
The trial judge who succeeded Loya dismissed charges against Shah after just three
days of hearings. As a series of reports published by The Caravan showed, there
were many troubling questions about Loya’s death. For instance, the inquest was
carried out by the police without informing the executive magistrate, as is the rule.
Prasanth Rathi, a total stranger who had no prior acquaintance with Loya, had
identified the body during the inquest and the post-mortem, and had signed off as
a “relative” before being handed over the body. The bill issued by Meditrina
Hospital on the day of Loya’s death contained charges for neurosurgery and diet
consultation—illogical in the case of a heart attack. Loya’s sister had also stated
that, when she saw her brother’s body, she had found bloodstains on his shirt.
There were several other details that simply did not add up.
Two petitions seeking an independent investigation were filed in the Bombay High
Court, set for hearing on 12 January 2018. Two similar petitions in the Supreme
Court filed that month were listed for the same date before Mishra’s bench. By
then, the four dissenting judges had already been urging Misra to avoid assigning
politically sensitive cases to his bench.
Mishra ultimately withdrew from the case. The CJI decided to hear the case
himself, along with Khanwilkar and Chandrachud. For a moment, it seemed that
the judges’ press conference had made a difference. Nine hearings took place in
February and March 2018, but in an acrimonious environment. The arguments
and evidence to support the need for an independent investigation were damning.
Dave would often be engaged in heated verbal battles with Chandrachud, who, at
one point, termed the hearing “worse than a fish market.” Dave urged the judges to
“act according to their conscience.” Chandrachud replied, “We will examine every
aspect of the case, and please do not tell us how to look into our conscience.”
The lawyer and activist Prashant Bhushan, who represented one of the petitioners,
even asked the bench whether it was appropriate for Chandrachud and
Khanwilkar, both hailing from the Bombay High Court, to continue hearing the
case, since they may be acquainted with the two judges and four judicial officers
from Maharashtra who had testified to Loya’s “natural death.” Both Khanwilkar
and Chandrachud refused to withdraw, stating that such a decision is a “matter of
conscience for the judge” and that “there is absolutely no ground or basis to
recuse.”
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The 114-page judgment, written by Chandrachud, was astonishing. The bench saw
“absolutely no merit” in the petitions. “The documentary material on the record
indicates that the death of Judge Loya was due to natural causes. There is no
ground for the court to hold that there was a reasonable suspicion about the cause
or circumstances of death which would merit a further inquiry,” the judgement
stated. Chandrachud claimed the petitions were an attempt to malign the judiciary
in the “garb of an investigation.”
The judgment placed great reliance on statements made by the four judicial
officers, stating that they had a “ring of truth” and so could not be doubted. But the
statements were not even made in an affidavit before the Supreme Court. They
only find mention in a report made by Maharashtra’s State Intelligence
Department—functioning under a BJP government—during its “discreet inquiry”
into Loya’s death after The Caravan’s reports. The department took just five days to
wrap up its inquiry. The bench was supposed to review whether an investigation
into Loya’s death was merited based on the available evidence before it. If it
thought the evidence was insufficient, it could have simply dismissed the case. But,
instead, it made a definitive conclusion on the cause of death. It did so without
conducting a trial or following the rules of criminal jurisprudence, which required
recording statements on affidavits and allowing the cross-examination of
witnesses.
Dave had specifically requested that 11 witnesses, including two of the judicial
officers, be cross-examined before the Supreme Court, but this request was denied.
Chandrachud’s judgment treated the discreet inquiry’s findings as gospel truth.
“But can such an enquiry report without the backing of legislation be admitted as
evidence in Court?” Manu Sebastian, the managing editor of Live Law, wrote. “It is
well-settled that [an] investigation carried out by an officer who is not specifically
authorised by statute is non-est (invalid) in the eyes of law. However, these
questions were not at all addressed.”
Chandrachud’s judgment castigated the petitioners and their lawyers for their
conduct and line of questioning, calling it a “vituperative assault on the judiciary,”
while delivering sweeping, conclusive findings. The judgment declared that “all
issues raised in that connection in the present case shall stand governed by the
judgment delivered by this Court,” effectively putting a permanent quietus and
shutting the door on any future investigation into Loya’s death.
When I asked one of the judges of that time how the judgment could be so
unsound in law, they said that Chandrachud, whom they had known for decades,
was perhaps trying to please Shah, who was the BJP president at the time and
someone he would go on to have a more proximate relationship with as CJI. “It
wouldn’t be out of character for him, you know,” the judge said.
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But, for the most part, Chandrachud was successfully able to maintain the
perception of taking on the executive. On a number of matters related to personal
liberty, such as privacy, free speech, gender and queer rights, he delivered
expansive and thoughtful judgments, as well as strong dissenting notes on benches
where he was in the minority. In 2018, Chandrachud dissented from his two
colleagues on the matter of “arbitrary arrests” of intellectuals and human-rights
activists in the Bhima Koregaon case. “Individuals who assert causes which may
be unpopular to the echelons of power are yet entitled to the freedoms which are
guaranteed by the Constitution,” he wrote. “Dissent is a symbol of a vibrant
democracy. Voices in opposition cannot be muzzled by persecuting those who take
up unpopular causes.” A few days later, the jurist Soli Sorabjee wrote in The Indian
Express, “One hopes that Justice Chandrachud’s dissent may become the majority
opinion of our Supreme Court in the years to come.” However, once he became
CJI, Chandrachud’s conduct as master of roster on these matters would undermine
his own clear positions when he was a sole dissenter. He would rarely ever take up
criminal matters himself and would often send petitions challenging wrongful
incarceration under the Modi government to a bench led by a judge who
frequently ruled in the favour of the BJP.
Chandrachud would end up helping the executive in more direct ways. In 2019,
after the BJP secured a second term with an even stronger mandate, he was part of
a bench that delivered a judgment that effectively served as a gift to the ruling
party.
IN DECEMBER 1949, a group of around fifty individuals surreptitiously entered
the Babri Masjid in Ayodhya and placed an idol of Ram inside. This action,
orchestrated by the Hindu Mahasabha, initiated a protracted struggle over the site,
culminating in the mosque’s destruction by Hindutva activists in 1992. India’s
secular fabric, at the turn of the century, had started tearing at the seams.
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Hindutva mobs atop the Babri masjid shortly before it was demolished on 6 December 1992. INDIAN EXPRESS ARCHIVE
Between 1949 and 1992, the Hindu Right pursued both ground action and legal
battles. In 1950, suits were filed for the right to worship the installed idols. The
Nirmohi Akhara, a religious Hindu sect, sought possession in 1959, while the
Sunni Waqf Board claimed ownership in 1961. In 1989, a suit requested ownership
on behalf of the deity Ram and the birthplace, “Asthan Shri Ram Janmabhoomi.”
The Lucknow bench of the Allahabad High Court consolidated these cases and
transferred them before itself. The following year, the BJP leader LK Advani led a
rath yatra from Somnath to Ayodhya to garner support, which triggered communal
violence that killed almost two thousand people.
The legal battles did not end with the mosque’s destruction in 1992. In 1996, the
high court began recording the oral evidence in the title suit, and, in 2010, a
judgment divided the land between Hindu and Muslim claimants, awarding two-
thirds to Hindu parties and one-third to Muslims. However, neither party had
requested partition, and the Supreme Court subsequently stayed the order in 2011.
The case moved slowly until 2014, when Modi came to power, revitalising the Ram
Mandir issue. For Modi, it was personal. As the Gujarat BJP’s general secretary in
1990, he had played a major role as the charioteer for the Gujarat leg of Advani’s
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rath yatra. In January 1992, Modi reportedly vowed not to go to Ayodhya until a
Ram Mandir was constructed.
In 2019, Ranjan Gogoi, who had succeeded Misra as CJI, formed a five-judge
bench, which included Chandrachud, Bobde, Ashok Bhushan and S Abdul Nazeer,
to hear the case. On 9 November, they passed a 1,045-page judgment. After seventy
years of litigation and political turmoil, the judgment that would finally close the
chapter was bizarre. It recognised the fact that the Archaeological Survey of India
had made no conclusions on whether the Babri Masjid was constructed after
destroying a Ram temple in the sixteenth century. It found that the remnants of a
“non-Islamic” structure below the mosque belonged to the twelfth century and
that nothing is known about what happened in the intervening centuries until the
mosque’s creation in the sixteenth century. It acknowledged that the destruction of
the Babri Masjid and the installation of the idol in 1949 constituted “an egregious
violation of the rule of law.” Yet, it allowed the entire disputed land to be given
over to a trust that would be set up by the union government for the construction
of the Ram Mandir. Muslims were to be allotted alternate land to build a mosque
because a “wrong committed must be remedied.”
It was a unanimous and, most strangely, unauthored verdict. Many former judges
of the Supreme Court told me that the language and style of the judgment were
typical of Chandrachud’s writing. The judgment stated that it was not deciding the
case on the basis of faith but purely as an issue of land dispute, but it ultimately
paid short shrift to legal principles and historical evidence.
The bench unfairly placed the burden of proof on the Muslim side, requiring them
to demonstrate exclusive possession of the site and the offering of namaz from
1528 (the construction of the Masjid) to 1857 (by the time the British annexed
Oudh from the Mughals). Their counsel admitted that there was no documentary
evidence to support this claim. “In the absence of evidence on record,” the
judgment noted, “no conclusion can be drawn that prior to 1857, the disputed site
was used for worship by the resident Muslim community.”
The judgment then relied mostly on eighteenth-century travel accounts
documenting Hindu worship near a three-domed mosque. Since the Muslim side
could not produce any documentary evidence of their possession of the inner
courtyard, the travel logs here supported the Hindu side’s claims of long-time
possession.
The judgment conflated the issue of property title—a civil matter—with the
criminal act of the mosque’s demolition and the question of reparations. It fell
“short both on law and justice,” Gautam Bhatia and Suhrith Parthasarathy wrote.
The Supreme Court, they added, “could have decided the case as a property
dispute, leaving the events of 1992 to be adjudicated on other forums (where they
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still linger). Or, it could have acknowledged that property rights had become
inseparable from the question of justice. Instead, the Court tried to do both.”
A five judge bench delivered a unanimous and, most strangely, unauthored verdict on the decades old Ramjanmabhoomi case.
Chandrachud would later say he had “sat before the deity and told him he needs to find a solution for this.”
This was, as was described to me by the second retired Supreme Court judge,
another indication of Chandrachud’s tendency to “cater to both sides.” At any rate,
it was a huge boost for the government’s Hindutva mandate. On 22 January 2024,
months before the next general election, Modi would consecrate the unfinished
temple. When I asked the first Supreme Court judge about the verdict, they
remarked with a hint of resignation, “Would any other judgment be acceptable in
this country?”
The judgment had also devoted ten pages to the Places of Worship Act, 1991, a law
prohibiting the conversion of any place of worship and mandating the preservation
of their religious character as of 15 August 1947—except in the Ayodhya case.
“Historical wrongs cannot be remedied by the people taking the law in their own
hands,” it declared. “In preserving the character of places of public worship,
Parliament has mandated in no uncertain terms that history and its wrongs shall
not be used as instruments to oppress the present and the future.”
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But Chandrachud’s later handling of the Gyanvapi mosque case undermined this
principle and opened a fresh chapter that would reignite communal tensions. The
Gyanvapi case involved Hindu plaintiffs seeking worship rights within the mosque
in Varanasi. Despite the Places of Worship Act, Chandrachud allowed a
controversial scientific survey of the mosque to take place in August 2023. “What
is frivolous to you is faith for the other side,” he told the mosque’s counsel Huzefa
Ahmadi. An earlier videographic survey purportedly found a “shiv lingam,”
although Muslims claimed it was a fountain. At another hearing in October 2023,
Chandrachud would say, “The Act says you can’t alter or convert nature of place.
They’re not seeking conversion of the place. The question is what is the status of
place as on August 15, 1947.”
“The law mandates freezing the character of a religious place as on
Independence,” the legal scholar, Faizan Mustafa, told me. “Now his bench says,
‘What is the character on August 15, 1947, we will decide.’ This is completely
against the legislative intent.” Chandrachud’s decisions have spurred a wave of
litigation challenging the status of mosques across India.
Hindu priests were given the right by a local court to use a part of the seventeenth century Gyanvapi mosque. Chandrachud
allowed a controversial scientific survey of the mosque to take place in August 2023. PAWAN KUMAR / AP PHOTO
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With the Ram Mandir, a core agenda of the Hindu Right received a stamp of
approval from the Supreme Court. In its second term, the Modi government
confidently moved on the other items on its agenda. On 5 August 2019, without
consulting any of the stakeholders or giving any notice to parliament, it revoked
Jammu and Kashmir’s special status and enforced a clampdown on freedoms,
including an internet shutdown for over a year and the house arrest of the state’s
political leaders. The government passed the Citizenship (Amendment) Act in
December 2019, setting the foundation for a larger disenfranchisement of Muslims
—there are two hundred petitions challenging its constitutionality. February 2020
saw communal violence in Delhi related to the anti-CAA protests, with the
flimsiest evidence used to charge student leaders and activists, many of whom still
languish in jail.
There were other cases that were to fall into Chandrachud’s basket. Matters
requiring a constitution bench, such as the question of electoral bonds, had come
to a standstill under NV Ramana, the forty-eighth CJI. Other crucial cases, barring
a few important exceptions, such as the pleas for an independent investigation into
the Pegasus snooping scandal and suspending the colonial-era sedition law, were
stalled. Then there was the issue of judicial appointments and the need for
promoting talent in the higher judiciary. The weight of expectation surrounding
Chandrachud was palpable.
IT WAS WELL PAST 11.30 am on 9 November 2022. Lawyers were packed tightly
in courtroom number 1. An air of anticipation filled the room as they awaited the
arrival of the three judges on the bench. Although the day’s work in a courtroom
typically begins at 10.30 am sharp, this was no ordinary day in that courtroom. It
was Chandrachud’s first day as CJI.
Chandrachud finally arrived and, gracious and composed, began his day by
apologising to the members of the bar for making them wait. The lawyers, eager to
extend their congratulations, began showering him with praise. Outside the
Supreme Court dome, Chandrachud had already laid out his agenda before the
media. When NDTV’s Ashish Kumar Bhargava asked him how he would assure
the nation that the judiciary was standing firm with them, Chandrachud said, “My
work, not just words, will speak.”
Chandrachud began his tenure by asserting his liberal credentials. He admitted a
petition filed by a gay couple seeking recognition of same-sex marriage, asked the
union government, as well as all states and union territories, to respond to a
petition seeking to provide free sanitary pads to girls studying in government
schools across the country and dismissed an appeal filed by the National
Investigation Agency against the Bombay High Court granting bail to the scholar
and activist Anand Teltumbde in the Bhima Koregaon case.
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The CJI moved on several pending cases. “Chandrachud decided that constitution
bench matters should be cleared. The previous CJIs did not. This was a positive
development,” the former Supreme Court judge Madan Lokur told me. “Over time,
he brought some stability to the Supreme Court, bringing down the temperature.”
Prashant Bhushan told me that Chandrachud’s push for digitisation, including
live-streaming of court proceedings, made the court “more transparent.” The
advocate KV Girish Chowdary would add that Chandrachud also “clearly
communicated” to tribunals and high courts that were reluctant to digitise “to get
it done.” He even directed his registry to organise a “hackathon” event to identify
innovative ideas, refine and bring efficiency to the existing process of listing and
filing of judicial matters.
Over time, however, some observers of his court began feeling a sense of despair.
Despite the early hope, several judges and lawyers expressed becoming “extremely
disappointed” with Chandrachud’s leadership. They described a failed balancing
act in which Chandrachud tried to live up to his progressive image while avoiding
moves that would upset the government. As head of the collegium as well as
master of roster, many of his decisions struck uncomfortable compromises.
{FOUR}
THE APPOINTMENT AND TRANSFER of judges remained a contentious issue
between the collegium and the government, with disputes playing out not just
administratively and through backdoor negotiations, but also in court. The stakes
were high because the judges Chandrachud’s collegium recommended would
shape the direction of the apex court for years to come.
The system for appointing and transferring judges to the high courts and the
Supreme Court is governed by the Memorandum of Procedure and various
Supreme Court rulings since 1981. For high-court appointments, the chief justice
of the court in question must begin the process six months before a vacancy arises,
consulting the next two seniormost judges. Their recommendations are forwarded
to the state’s chief minister, who sends the file, via the governor, to the law
ministry within six weeks. The law ministry then has around four months to vet
the names—via the Intelligence Bureau—and send them to the Supreme Court
collegium. The collegium, comprising the three seniormost judges, submits its
recommendation to the law minister within four weeks. The law minister can
either clear the name, forward the file to the prime minister for the president’s
approval, or return it to the collegium with specific reasons for rejection. If the
collegium unanimously reiterates the recommendation, the government must
appoint the person within three to four weeks. For Supreme Court appointments, a
five-member collegium follows a similar process, initiated by the CJI.
Meanwhile, transfers of high court judges are overseen by a five-member
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collegium and, for all intents and purposes, are an internal administrative function
of the judiciary. In these matters, the union government’s role is limited.
The timelines for transfers and appointments, however, have mostly been followed
in the breach. Further, according to the judges I spoke to, the union government
has rejected recommendations twice, or even thrice.
Just two days after his elevation as CJI, Chandrachud listed a 2021 contempt
petition filed by the Advocates Association of Bengaluru. The petition accused the
union government of violating an April 2021 Supreme Court judgment that
mandated the government to clear names reiterated by the collegium within four
weeks. According to the petition, 11 names had remained pending for months,
despite being reiterated.
ANI
The Supreme Court had a chance here to enforce compliance. Chandrachud
assigned the case to Sanjay Kishan Kaul, the seniormost judge after him. Kaul’s
frustration—and, through him, the collegium’s—with the Modi government’s
delays in judicial appointments became apparent in the hearings. “Timelines have
to be adhered to,” he remarked in November 2022. “It is crossing some Rubicons by
keeping the names pending like this.” He accused the government of “effectively
frustrating the method of appointment.”
The court underscored how these delays were discouraging prominent lawyers
from accepting judicial positions. “It’s becoming some sort of device to compel
these persons to withdraw their names,” the bench observed. Further, the union
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government’s selective approval of certain recommendations from a batch of
names also disrupted the seniority order of judges.
Kaul’s bench also warned the government against stalling transfer
recommendations. “Keeping them pending sends a very wrong signal,” he said. He
even told the attorney general, R Venkataramani, in January 2023, that the delays
gave the impression of “third-party interference” in the process.
Outside the courtroom, Kiren Rijiju, the law minister at the time and a vocal critic
of the collegium system, openly challenged the judiciary. “Never say that the
government is sitting on the files,” he said in an interview. “Then don’t send the
files to the government; you appoint yourselves and run the show.”
The situation began resembling the judiciary–executive standoff that followed the
NJAC verdict. Kaul acknowledged that the delays were due to the government’s
“unhappiness” with the NJAC ruling. In response to Rijiju’s attacks, he remarked
from the bench that people might have reservations about the collegium system
but, “until it stands, it is the law of the land.”
After a break in hearings from February 2023, Kaul’s bench resumed in September
2023, noting significant pendency: 70 high-court recommendations not forwarded
to the collegium, seven reiterated names—including the openly gay advocate
Saurabh Kirpal—nine Supreme Court collegium recommendations and 26 transfer
requests. “Selective appointments have been made,” the bench remarked in
November 2023.
A particularly contentious issue was the union government’s refusal to transfer
four Gujarat High Court judges, including Samir J Dave. The retired juges told me
the collegium had received inputs from different quarters raising serious questions
about the four judges’ integrity. Dave had sparked controversy in June 2023 when
he commented during a case involving a pregnant minor rape survivor that “girls
used to give birth by 17, read Manusmriti.” Before recommending the transfers, the
collegium had consulted colleagues who had been elevated from the Gujarat High
Court. Bela Trivedi, the first retired Supreme Court judge told me, opposed the
move. “Some judges become incorrigible if they think they can go to the
government and stall action against them,” he said. “It’s very dangerous for the
institution.”
During the final hearing, in November 2023, just weeks before his retirement, Kaul
hinted that, if the union government continued stalling the transfers, the judiciary
might withdraw work from the four judges. His criticism highlighted how delays,
selective approvals and government interference were eroding judicial
independence and straining the balance of power between the judiciary and the
executive, all while high-court vacancies continued to swell.
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Although Kaul’s bench scheduled the case for 5 December, it was mysteriously
removed from the docket. “I will just say one thing: I have not deleted the matter. I
am sure the chief justice is aware of it,” Kaul reportedly told Prashant Bhushan.
The first retired Supreme Court judge told me that Chandrachud was “under
immense pressure from the government at the time and couldn’t stand up to
them.”
“Everyone knows that it’s the home minister running the show at the law
ministry,” they said, describing how files related to judicial appointments are now
sent to the home ministry, where a dedicated team meticulously scrutinises each
candidate. “They check, then re-recheck, and sometimes completely reverse their
opinions,” the judge noted, adding that the government is hypersensitive to
anything a candidate may have said or implied in the past.
According to the two retired judges, Modi trusts Shah with the appointments
process, and the personal involvement of a busy man like Shah caused delays.
“The law minister today is just a post office, passing files from one place to another.
They don’t have anyone who commands the confidence of both the government
and the judiciary. The bureaucracy has also become very, very slow,” the first judge
remarked. “That’s why the judiciary needed to take action. The high courts are the
foundation. As chief justice of India, you can’t just focus on Supreme Court
appointments—it’s total chaos today.” Both judges believed that Chandrachud was
not able to stand up to Shah. “Often, when the government pressed for a particular
name, Chandrachud couldn’t say no,” the second judge said. Both retired judges
told me that, of the 17 names recommended for Supreme Court elevation during
Chandrachud’s tenure, eight were strongly urged by the government, six were the
collegium’s own choices and three were a consensus between the government and
the collegium.
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DY Chandrachud greets Amit Shah, the union home minister on Independence Day at Red Fort on 15 August 2023. RAJ K RAJ /
HINDUSTAN TIMES / GETTY IMAGES
In September 2022, the collegium headed by Chandrachud’s predecessor, UU Lalit,
had recommended the elevation of Dipankar Datta, the chief justice of the
Bombay High Court, to the Supreme Court. While the government was willing to
clear his name in principle, it expressed reservations, saying they “didn’t know him
too well,” the first judge said. While the government relented on Datta’s elevation
on 11 December 2022, two days later, Chandrachud’s collegium recommended five
more names for elevation: Pankaj Mithal, Sanjay Karol, PV Sanjay Kumar,
Ahsanuddin Amanullah and Manoj Misra. “Mithal and Karol were the
government’s picks,” the judge said. In December 2021, Mithal, who was then
chief justice of the Jammu & Kashmir and Ladakh High Court, delivered remarks
during a speech to the Akhil Bharatiya Adhivakta Parishad, the Sangh’s legal wing,
expressing concern over the term “secular” in the preamble of the Constitution,
which, he suggested, limited India’s spiritual identity. Karol had once had close
professional ties to Arun Jaitley.
Meanwhile, the first judge said, the government was pushing another candidate
for elevation: Ravi Ranjan, the chief justice of the Jharkhand High Court. The
collegium had received damaging allegations of his involvement in murky land
deals, and none of the members agreed to his name. This delayed the elevation
process until, the two retired judges claimed, Chandrachud struck a compromise
by late January, allowing two fresh government-preferred choices—Rajesh Bindal
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and Aravind Kumar—to move forward. As acting chief justice of the Calcutta High
Court, Bindal had passed several orders against the Mamata Banerjee government
that the West Bengal Bar Association had criticised as favouring the BJP. Kumar,
on the other hand, was the chief justice of the Gujarat High Court. “Some within
the collegium would ask Chandrachud to not give the government both the
names,” the first judge told me, “but he would say that he has given his word to
them.”
The government moved to clear the first batch within a few days, and Bindal and
Kumar five days later, in February 2023. Chandrachud’s collegium managed to
elevate ten more judges by the end of his tenure. According to both retired
Supreme Court judges, these included a few names the government pushed for,
including Prashant Kumar Mishra and Satish Chandra Sharma. Mishra had
recused himself from a bench hearing Umar Khalid’s bail and had previously
opposed the activist Teesta Setalvad’s interim bail. Sharma was part of a bench that
had dismissed petitions asking the Election Commission to act against Modi’s hate
speeches. “You can’t really say why the government pushes for a candidature,” the
second judge said. “There could be many factors. And it doesn’t necessarily mean
they are not meritorious.”
The government cleared these names with lightning speed, in less than seven days
—some within three. “Informal meetings between the minister and chief were
regular,” the second judge told me. “Before any names were considered for
elevation, Chandrachud would obtain a pre-approval. What message would this
send to the executive? You have spoiled their habit! They now expect the collegium
to seek pre-approval, as some sort of a norm.”
A former high-court chief justice told me that high courts are now reaching out to
Supreme Court judges to ask them about the “safest names” to send for
appointments. “There is an extraconstitutional body clearing names now,” they
said. “This is all the more clear now. So the fear to rule against the government is
there. Safest to go along.”
The two judges had told me they were worried about the cascading effect this form
of pre-approval procedure would have. “I don’t know why Chandrachud does not
stand up on appointments,” the first judge said. “This may have been the case
earlier too sometimes, but not at this level! What about CJIs with a shorter tenure
than him? Can he expect them to push back? On every small matter related to
appointments and transfers he wants to ask the government first, ki sarkar se ek
baar poochh lete hain. What system is he leaving in place for the other judges, for
the institution?”
Over the past two months, I sent Chandrachud multiple requests for an interview,
but he declined to meet me. He did not respond to a detailed questionnaire.
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THE APPEARANCE THAT Chandrachud’s collegium was increasingly aligned
with the executive’s preferences can be illustrated through two other examples: the
sidelining of S Muralidhar and the elevation of Victoria Gowri. Muralidhar, who
retired in August 2023 as chief justice of the Orissa High Court, had played a
critical role during the Delhi communal violence in 2020, ensuring swift action on
complaints and questioning the Delhi Police on its failure to lodge first-
information reports against BJP leaders such as Anurag Thakur and Kapil Mishra,
who had openly incited violence. Almost immediately that night, the Modi
government cleared a pending collegium resolution on his transfer to the Punjab
and Haryana High Court.
The first retired Supreme Court judge told me that Muralidhar used to ask “what
has he done wrong” when his elevation was not being recommended by the
collegium. When asked by his collegium colleagues about Muralidhar, they said,
Chandrachud would reply, “Sarkar nahin manegi”—the government will not
agree. “I just wish he could’ve done more, gotten better judges,” the judge added.
Muralidhar’s courageous stance during the communal violence, particularly his
confrontation with powerful political figures, likely contributed to the
government’s resistance to his elevation. Despite his reputation as a “meritorious,
upright judge,” Chandrachud’s collegium did not elevate him.
Meanwhile, as I had reported in January 2023 for Article 14, one of the collegium’s
recommendations for the Madras High Court, Victoria Gowri, had delivered
several statements bordering on hate speech against Muslims and Christians.
“Christian groups are more dangerous than Islam groups,” she said in an
interview. “Both are equally dangerous in the context of love jihad.”
Gowri was also a member of the BJP and, before her appointment to the bench, the
union government’s assistant solicitor general in the Madras High Court. The
members of the Madras Bar Association wrote a letter to the president and the
collegium, expressing their dismay at her being recommended for elevation.
“Gowri’s regressive views are completely antithetical to foundational constitutional
values & reflect her deep-rooted religious bigotry,” the 22 signatories said. “Can
any litigant belonging to the Muslim or Christian community ever hope to get
justice in her court, if she becomes a judge?”
One of the judges in the high court at the time confirmed that KM Joseph, a
Supreme Court judge whose own elevation had been stalled by the union
government for eight months, had suggested that Gowri’s recommendation be
recalled. But that would have been an embarrassing admission of oversight for
Chandrachud’s collegium. The collegium refused to recall the recommendation. “I
will neither confirm nor deny,” Joseph said, when I reached out to him for
comment.
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When members of the Madras Bar Association filed a petition before the Supreme
Court challenging Gowri’s recommendation and brought it to Chandrachud’s
attention on a Monday morning, he responded that “since we have taken
cognizance of certain developments which have taken place thereafter, we can list
this petition tomorrow morning. I will constitute a bench. Let that go before the
appropriate bench.” Chandrachud promised to list the matter the following day.
However, minutes later, Gowri’s recommendation—previously pending with the
government—was approved, along with those of four other candidates for the
Madras high court.
Although lawyers sought a late-night hearing at the Supreme Court, one lawyer
who worked on the case told me, Chandrachud only agreed to list it for 9.30 am the
following day, an hour earlier than the usual court time. Nevertheless, a bench of
Sanjiv Khanna and BR Gavai heard the case only at 10.30 am. As they heard the
matter, Gowri was already waiting in the Madras High Court for the swearing in.
Even as the bench dismissed the challenge, stating that the collegium had all the
relevant information—contradicting Chandrachud’s statement from the day before
—Gowri took her oath and assumed her position as a judge. The judgment later
justified the decision, noting that “the Collegium of the High Court and the
Supreme Court have not, on this basis [the letter by members of the bar], deemed
it appropriate to withdraw the recommendation or recall their decision.”
Months later, when Chandrachud was asked at a Harvard Law School event about
the controversy and the collegium’s inaction, he responded with a question: “To
what extent do you disable an individual from becoming a judge? Just by virtue of
the fact that they have at a certain point of time appeared for a political cause?” In
doing so, Chandrachud framed the issue as one concerning Gowri’s political
association with the BJP, sidestepping the primary objection: her past controversial
statements.
When I asked the solicitor general of India, Tushar Mehta, about the complaints
about the way judicial appointments were being made, he remarked, “It is the
collegium that is appointing, right?”
SEVERAL FORMER JUDGES and lawyers I spoke to pointed out that
Chandrachud’s actions as head of the collegium did little to promote talent in the
higher judiciary. By 1 October 2024, there were 363 vacancies out of a sanctioned
strength of 1,114 high-court judges, a significant increase from the 339 vacancies
two months after he became CJI.
A senior official from the CJI’s office told me, under Chandrachud’s leadership, the
Supreme Court collegium recommended 164 names for high court judgeship, with
124 being cleared and 40 pending with the government by 22 October 2024. A
majority of the names were cleared—more than 95—last year when Kaul’s bench
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was hearing the judicial appointment matter. This year, only 34 have been cleared.
This is the least number of high-court recommendations when compared to all the
previous collegiums since late 2017. “The government is simply not moving,” the
first retired Supreme Court judge said. “I am told around a hundred high-court
proposals have not been forwarded to the SC collegium.” A senior bureaucrat
within the law ministry confirmed a similar figure. “About eighty HC proposals are
pending, and more than twenty received from the Supreme Court,” they said. The
first judge said that the Modi government is “unhappy that more names leaning
towards the RSS–BJP were not coming from the high courts. The government also
considers the judiciary irrelevant, that’s why it does not bother filling up vacancies.
I don’t know how long this can go on.”
Regarding the appointment of chief justices to high courts, Chandrachud’s
collegium appeared to adjust its recommendations to better align with executive
interests as his tenure progressed. For example, on 11 July 2024, the three-member
collegium recommended Suresh Kumar Kait of the Delhi High Court be named
chief justice of the Jammu & Kashmir and Ladakh High Court, and that GS
Sandhawalia of the Punjab and Haryana High Court head the Madhya Pradesh
High Court. The government delayed acting on these recommendations for over
two months.
On 17 September 2024, the collegium altered its decision, opting to send Kait to
Madhya Pradesh, a BJP-ruled state, instead of Sandhawalia. The latter is seen as a
bold judge who challenged the BJP government in Haryana over demolitions in
Nuh and Gurugram. His bench questioned whether only Muslim buildings were
being demolished and stayed the demolitions, suggesting that the state was
engaging in “ethnic cleansing” under the guise of maintaining law and order. The
chief justice, Ravi Shankar Jha, had reassigned the case before the next hearing.
Instead of Madhya Pradesh, the collegium sent him to Himachal Pradesh, a
Congress-ruled state.
Kait, meanwhile, had overseen bail pleas related to several defendants in the
politically sensitive conspiracy case related to the Delhi violence in which 18,
including Umar Khalid, were charged under the UAPA. The violence resulted in at
least 53 deaths, with two-thirds of the victims being Muslim. Despite at least eight
pending bail pleas since 2022 and the Supreme Court having mandated a two-
week deadline for bail decisions, Kait’s bench showed little urgency, often delaying
verdicts even after arguments were completed. Although Kait’s appointment was
cleared swiftly on 22 September, Sandhawalia’s is still pending.
{FIVE}
A WEEK INTO HIS TENURE as CJI, Chandrachud said in open court that he
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was keeping a “close watch on the listing of cases, my first priority.” He felt that
such power “is not being, perhaps, employed properly” and even promised to
minimise human intervention in the listing procedure. But, by 2023, a troubling
pattern in his role as master of roster came to light.
Several politically sensitive cases were being assigned to a bench either presided by
or consisting of Bela Trivedi, a junior judge perceived to be ideologically aligned
with the BJP. Trivedi had served as law secretary under Modi, when he was
Gujarat’s chief minister, during the anti-Muslim pogroms of 2002. Lawyers
frequently remarked how she seldom granted relief, especially when the stakes
were high for the BJP government. “There’s an ongoing joke,” the Supreme Court
advocate told me. “Even if an opposition leader dies in jail, Trivedi still wouldn’t
grant bail to his body.”
In a December 2023 piece for Article 14, I detailed eight such cases from the
previous four months. They included Umar Khalid’s bail plea and an NIA appeal
against the bail granted to Mahesh Raut, an accused in the Bhima Koregaon case,
as well as a petition challenging provisions of the UAPA. Two petitions were
related to corruption charges against the former Andhra Pradesh chief minister N
Chandrababu Naidu. The jailed Tamil Nadu minister Senthil Balaji sought bail on
medical grounds, while his government wanted to overturn a Madras High Court
injunction quashing its corruption investigation against the former chief minister
Edappadi Palaniswami, then a BJP ally. The Central Bureau of Investigation
challenged a similar high-court stay order on its disproportionate-assets probe
against the deputy chief minister of Karnataka, DK Shivakumar.
In each of these cases, Trivedi’s benches took decisions that appeared convenient
for the ruling party. Khalid’s application was attached to the UAPA petition and
repeatedly adjourned, until his lawyers withdrew it in February this year, hoping to
try their luck in a lower court. Raut remained in jail, as the court kept extending
the stay order on his bail without holding any hearings. Balaji was denied bail,
withdrew his plea and eventually found relief from a different bench. Trivedi and
her colleague Aniruddha Bose delivered a split verdict in Naidu’s case—he
eventually resumed his party’s alliance with the BJP and won a fourth term as
chief minister, and the Enforcement Directorate dropped its charges against him
this October. The court refused to lift the stay on either the Palaniswami or the
Shivakumar investigations but, while Trivedi called the former “absolutely
perfect,” she directed the Karnataka High Court to rule on the CBI’s petition
within two weeks. Once the high court allowed the investigation to proceed, her
bench dismissed Shivakumar’s appeal.
At the time, Trivedi was ranked the sixteenth out of the 34 judges on the Supreme
Court in terms of seniority, and was one of 17 presiding judges leading a bench.
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These cases were either withdrawn from a senior judge and reassigned to her
bench, or cases were assigned to her bench directly, even though there was another
judge hearing a similar matter. It constituted serious violations of rules and
convention. The Supreme Court’s 2017 Handbook on Practice and Procedure And
Office Procedure clearly states that cases should remain with the senior judge
before whom they were first listed or be assigned to a judge handling a similar
case. Years after the bench-fixing controversy that implicated Dipak Misra, and
after Chandrachud’s own promises to guard against rule manipulation, this was a
particularly worrying development.
Kapil Sibal and Dushyant Dave had even publicly objected to these irregularities.
Dave wrote a letter to Chandrachud, pointing out that the chief justice “cannot
exercise power to take away any case” unless the senior judge becomes unavailable
due to retirement. He called into question the impartiality of case assignments
under his tenure.
Chandrachud tried to address the controversy in an interview with the Press Trust
of India. “If a judge recuses, the case is then put up before the chief justice, who
will reassign it,” he said. “The reassignment may be to a senior judge or a junior
judge. Once the case is assigned, it stays with that judge unless they are
unavailable due to illness or other reasons, at which point it must be reassigned.”
He added that it was clear to him that “if the credibility of the institution of the
Supreme Court is to be maintained, we have to ensure that the allocation of cases
is not going to be lawyer-driven.” His tone was terse. “It has to be in line with our
processes and systems. Having said that, well, you have to trust your decision-
makers.”
His response was a kind of misdirection. It conveniently did not address how those
processes and systems had actually been violated. In each of the eight cases I
analysed, there had been no recusals or unavailability of judges hearing the case.
For instance, Khalid and Raut’s bail pleas were listed before a bench headed by
Aniruddha Bose. He did not recuse himself, nor was he unavailable, but both cases
were reassigned to Trivedi’s bench.
“If I was the chief justice, I wouldn’t mark any such case to Bela,” the first retired
Supreme Court judge told me. “I’ve worked with many judges, but never someone
as pro-government and as ultra-conservative as her.”
THE FIRST RETIRED JUDGE recounted a telling episode involving
Chandrachud and Trivedi—a moment that underscored the delicate power play
within the highest court of the land. The case involved the reconsideration of the
July 2022 verdict, by a three-judge bench headed by Khanwilkar, upholding the
amendments to the Prevention of Money Laundering Act, which gave sweeping
powers to the ED, including the ability to arrest, search and seize property without
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an FIR and without a warrant where only a “reason to believe” would suffice.
Legal experts had slammed these powers as excessively broad, giving the agency
near-absolute authority to act arbitrarily. It flipped the fundamental core of judicial
wisdom—that you are innocent until proven guilty—on its head.
A month later, and a day before his retirement as CJI, Ramana had raised serious
concerns about the judgment’s problematic aspects, particularly the reversal of the
presumption of innocence and the copy of the enforcement case information
report—the equivalent of an FIR—not being provided to the accused. Ramana had
ordered the case to be “reconsidered” by a special bench. But, after his retirement,
the case stalled. For nearly a year and well into Chandrachud’s tenure, no special
bench was constituted to re-examine the matter.
The issue resurfaced in August 2023, when some petitions connected with the
main case were placed before a bench led by Trivedi and Dipankar Datta. Trivedi
ordered all petitions to be listed together for hearing. Soon after, a new three-judge
bench led by Trivedi was constituted, and all cases pulled before her bench, for
reconsideration of the verdict. Datta however, recused himself, forcing
Chandrachud to reconstitute the bench.
Behind the scenes, tension brewed. According to the first retired judge, Sanjay
Kaul had protested against the case being handed to Trivedi, because of her
partisan and conservative approach to criminal matters. “Chandrachud’s response
was that Trivedi had already passed a judicial order to list the case before her, and
he couldn’t interfere,” the judge told me. The response was baffling, since it
indicated a junior judge was able to breach his authority as master of roster and
“dictate in their judicial orders where a matter should be listed.” Ultimately,
Chandrachud reconstituted a bench led by Kaul, and joined by Trivedi and Sanjiv
Khanna.
The new bench began hearing the reconsideration plea in October 2023, but
Tushar Mehta, representing the Modi government, repeatedly sought extensions.
Kaul, due to retire in December, was frustrated. “With a little heavy heart,” he said
by the end of November, the bench had to relinquish the case. There was not
enough time, he said, to pen a proper order. “We know everything,” he added. “But
sometimes, things must be left unsaid. On this side, we see and hear many things,
but we don’t say many things.” The bench was reconstituted once more—this time
headed by Khanna—but, since then, the case has been left in limbo.
By the time Chandrachud became CJI, calls for reforming the chief justice’s
opaque “master of roster” powers were widespread. Yet, these demands went
unmet—unsurprisingly, as, back in April 2018, Chandrachud had authored a
judgment dismissing a petition demanding such reforms, asserting that case
allocation and bench formation were “exclusively in the domain of the prerogative
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powers of the Chief Justice.”
In Chandrachud’s court, political prisoners continued to languish behind bars. Six
of the 15 surviving accused in the Bhima Koregaon case—Gautam Navlakha,
Shoma Sen, Vernon Gonsalves, Arun Ferreira, Mahesh Raut and Jyoti Jagtap—
whose bail pleas were either heard or are still pending before the Supreme Court
or faced delays ranging from three to seventeen months. Another co-accused,
Hany Babu, withdrew his bail plea in May 2024 after discovering it would be heard
by Trivedi.
Similarly, in the Delhi violence conspiracy case, both Khalid and Salim Malik
withdrew their bail petitions when they found their pleas listed before Trivedi.
Sharjeel Imam, another co-accused, filed a petition complaining about his bail plea
being kept in limbo for over two and a half years by the Delhi High Court—six
other co-accused face a similar situation. Imam’s plea was also listed before
Trivedi, who dismissed it in the first hearing. These cases stand in contrast to
Chandrachud’s earlier declaration when the right-wing news anchor Arnab
Goswami was arrested: “Deprivation of liberty even for a single day is one day too
many.” But, as a CJI, with the power to assign cases, Chandrachud appeared to
advertently, as the former high-court chief justice remarked, “pre-decide who to
grant bail and who not to.” This will also be part of his legacy—a mismatch
between his stated ideals and how he allowed state persecution to persist.
I asked Mehta whether he thought of Chandrachud as a liberal judge, “If by liberal
you mean a relief-oriented judge, then I don’t think he is liberal in that sense,” he
said. “He is neither too liberal, nor too conservative when it comes to granting
relief. But in his outlook towards various social issues, he may be liberal.” When I
asked Mehta about Chandrachud’s approach in criminal cases, he indicated it was
not the CJI’s priority. “I have appeared very rarely because he has taken up
[criminal cases] very rarely,” he said.
The senior human-rights lawyer Colin Gonsalves spoke of other types of cases
Chandrachud did not take up as CJI. “Cases concerning human rights, to do with
labour, housing, tribals, food and healthcare disappeared from his courtroom,” he
said. “He never felt the need to even touch these categories of cases.”
{SIX}
CHANDRACHUD’S LEGACY AS CJI will be marred by questionable judgments
in some cases he presided over directly. The political crises in Delhi and
Maharashtra are illustrative examples. In one, he had the opportunity to end an
eight-year constitutional crisis in the country’s capital and, in the other, to prevent
a state government formed through underhanded means stay in power. But
Chandrachud’s rulings provided little beyond a display of judicial philosophy and a
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conspicuous deference to current power structures in these high-stakes conflicts.
On 21 June 2022, Eknath Shinde and 11 other Shiv Sena state legislators missed a
meeting called by the party president and chief minister, Uddhav Thackeray. The
previous day, some legislators from the ruling Maha Vikas Aghadi—a coalition of
the Sena, the Congress and the Nationalist Congress Party—had voted for BJP
candidates in the elections to the legislative council. Devendra Fadnavis, the leader
of the opposition, described this as the “beginning of change,” hinting at an
attempt to destabilise the government by enticing legislators to switch sides. On 30
June, Shinde was sworn in as chief minister, with the support of the BJP, 39 Sena
rebels and 11 independents.
The Supreme Court, particularly its vacation bench, played a critical role during
this period, shaping the power shift in Maharashtra. By 24 June, when Shinde’s
rebellion was clear, Thackeray’s camp had moved fast. The acting speaker, Narhari
Zirwal, a member of the NCP, was asked to initiate disqualification proceedings
against Shinde and the rebels. The rebels responded with a no-confidence motion
against Zirwal, but he rejected it, claiming that the motion was sent via an
“anonymous email” and lacked authenticity. Subsequently, disqualification notices
were issued against Shinde and 15 others.
Shinde’s camp swiftly challenged these notices before the Supreme Court, arguing
that Zirwal could not decide on their disqualification because of the Supreme
Court’s Nabam Rebia judgment of 2016, which held that a speaker cannot rule on
disqualification petitions under the anti-defection law when a motion for their
removal is pending. Thackeray’s camp, meanwhile, raised the 1992 Kihoto
Hollohan judgment of the Supreme Court, which bars courts from interfering in
the speaker’s decisions before a final ruling is made.
The court, however, entertained the rebels’ petition. The vacation bench of Surya
Kant and JB Pardiwala extended the deadline for the rebel legislators to respond to
the disqualification notice from two days to a fortnight. This was an unusual move,
as courts typically refrain from intervening in legislative proceedings at such an
early stage. Kant would later defend his decision by stating that the order was
passed due to an “exceptional circumstance.” “Initially, we were quite convinced
that the bench was not in favour of interfering with the proceedings before the
speaker,” one of the lawyers involved with the case told me. “But then they took a
five-minute break and got back to order this.” The decision created a significant
turning point in the case.
Soon after, the governor of Maharashtra, Bhagat Singh Koshyari, responded to
letters from the rebels by asking the MVA government to prove its majority within
two days. The Thackeray faction challenged the governor’s decision, arguing that
defectors should not be allowed to vote in the assembly until their disqualification
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was determined. However, the Supreme Court did not issue a stay order on the
floor test. As a result, Thackeray resigned on 29 June.
Two months later, after Shinde had firmly established himself as chief minister,
the case was referred to a constitution bench led by Chandrachud. This bench
eventually heard arguments from both sides in February and March 2023, with
Chandrachud having taken over as CJI. The judgment, delivered on 11 May, began
with hope for Thackeray’s camp. The court referred the Nabam Rebia judgment to
a larger bench for clarification. It also ruled that the actions of the new speaker,
who recognised Shinde as leader of the Shiv Sena Legislature Party and appointed
a new chief whip, were illegal.
However, the most significant part of the judgment was the court’s ruling that the
governor’s decision to call for a floor test was illegal. It noted that the crisis
stemmed from internal party disputes, which did not warrant the governor’s
intervention. While a loss of support could justify a floor test, internal
dissatisfaction within the party did not. The rebels, the court pointed out, had
never indicated in their letters that they were withdrawing support from the
Thackeray government. Therefore, the governor lacked the objective basis to order
a floor test.
Despite this favourable ruling for Thackeray’s side, the court made it clear that it
could not overturn Thackeray’s voluntary resignation as chief minister, which he
submitted before the floor test could take place. The court also stated that had
Thackeray refrained from resigning, it might have considered reinstating his
government.
But the main thrust of the arguments made by Thackeray’s faction was for the
disqualification of the 16 rebel legislators, which would have destabilised the
Shinde government. “That was the fight,” the lawyer said. However, the bench,
which went into all kinds of issues in its 141-page judgment, deferred the issue of
disqualification to the speaker to decide. It emphasised that it could later review
the speaker’s decision. The new speaker, Rahul Narwekar of the BJP, did not act on
the disqualification petitions until months later, in January 2024, on
Chandrachud’s orders.
As most expected, Narwekar refused to disqualify the legislators. His decision was
challenged immediately, but Chandrachud failed to decide the issue. This has
enabled the Shinde government—formed through a process that the court itself
had termed “illegal”—to remain in power as Maharashtra heads toward elections
in November.
Priyanka Chaturvedi, a Rajya Sabha member of parliament from the Shiv Sena
(Uddhav Balasaheb Thackeray), told me that she had expected Chandrachud to be
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“bold enough to set things right when all institutions of justice are failing.”
However, she added, “It was at times baffling and, at most times, disappointing to
see the remarks and judgments differ drastically, cases impacting the Constitution
not handled with priority and dragging endlessly.”
UU LALIT HAD also handed over one of the most contentious and long-standing
battles in Indian politics—the power tussle over Delhi’s bureaucracy—to a
constitution bench headed by Chandrachud. The stakes were enormous, as this
case would decide the balance of power between the lieutenant governor
appointed by the union government and the elected government of Arvind
Kejriwal’s Aam Aadmi Party.
The issue had been boiling since 2015, when a gazette notification by the union
home ministry handed control of transfers and postings of government officers to
the LG. What followed was a bitter struggle, with the AAP accusing the BJP of
attempting a “coup” in the capital through the bureaucratic takeover. It was a
move that, in the AAP’s eyes, effectively stripped the elected government of its
power, leaving it at the mercy of a nominated figure aligned with its political
opposition. Without control over the services, the AAP feared that it would not be
able to deliver its promises.
Delhi’s administration descended into chaos. The Kejriwal government found
itself locked in constant confrontation with bureaucrats who, it alleged, no longer
obeyed its orders, and also with the LG, who would not clear its files and decisions.
There were instances when the territory’s governance came to a standstill due to
striking officers, like in December 2015 over suspension of two officers, and in
February 2018 over the alleged assault of Delhi’s chief secretary by AAP legislators
at Kejriwal’s residence.
In August 2016, the Delhi High Court delivered a decisive blow to the AAP
government, ruling that the LG had “complete control of all matters regarding
National Capital Territory of Delhi, and nothing will happen without the
concurrence of the LG.” This judgment set the stage for a legal battle that would
reach the Supreme Court, where larger constitutional questions were referred to a
five-judge bench that included Chandrachud.
By July 2018, the constitution bench handed a significant victory to the AAP
government, ruling that the LG had no “independent decision-making power” and
must act on the advice of the elected cabinet. It was a triumph for the principles of
representative democracy, but the celebrations were short-lived. Though the bench
had set a clear framework, urging both the LG and the AAP government to
embrace “collaborative federalism,” it left the specific issue of control over civil
services unresolved. So the conflict between the two constitutional bodies
persisted. Officers continued to follow the LG’s directives, even without the
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cabinet’s consent. But still, the verdict gave the AAP a freer hand to implement
policies such as free electricity, free bus rides for women and doorstep delivery of
rations.
This unresolved issue of services was sent back to the two judges who had
originally referred the case to the constitution bench. In February 2019, this bench
—comprising Ashok Bhushan and AK Sikri—delivered a split verdict, unable to
reach a consensus on the issue. The unresolved question lingered for years and, by
May 2022, it was once again back before a five-judge constitution bench, this time
headed by Chandrachud.
The AAP government had been re-elected, clinching 62 out of the 70 seats in the
2020 assembly election, only five fewer than its 2015 tally. By the time this
constitution bench began its hearings, in January 2023, Kejriwal’s party had also
ended the BJP’s fifteen-year control over the Municipal Corporation of Delhi,
which, it alleged, had been marked with widespread corruption.
Modi’s government, too, had played its card at the centre. In March 2021, it passed
the Government of National Capital Territory of Delhi (Amendment) Act and the
Transaction of Business of Government of National Capital Territory of Delhi
(Amendment) Act. The laws now made it explicitly clear that the term
“government” in any law made by the Delhi assembly would mean the LG. They
also made it obligatory for the Delhi government to seek the LG’s opinion before
undertaking any executive action and barred the assembly from making any rule to
enable itself or its committees to consider matters of day-to-day administration.
Now, with the legal and political stakes even higher, Chandrachud was faced with
the same question, one that had the potential to either cement or erode the power
of Delhi’s elected government. The eyes of both the political class and the public
were fixed on the courtroom, waiting to see if this would be the moment Delhi’s
eight-year-long governance nightmare would finally come to an end.
Chandrachud’s bench heard the case over five intense days in January 2023. The
Kejriwal government’s counsel, Abhishek Manu Singhvi, argued that, without
control over transfers and postings of civil servants, it could not be held
accountable to the people it governs. Shadan Farasat, who was also representing
the Delhi government, pointed out that even in the most centralised governments
around the world, local authorities, rather than the union government, usually
have control over civil services in the national capital. The union government,
represented by Tushar Mehta, countered that Delhi was a “sprawling metropolis”
that required union control, insisting that union territories were meant to be
directly administered by the centre.
Four months later, the Supreme Court, in a unanimous verdict, agreed with all
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contentions raised by the Delhi government in a 105-page judgment.
If a democratically elected government is not given the power to control the
officers, the principle of triple chain of accountability will be redundant. If the
officers stop reporting to the Ministers or do not abide by their directions, the
principle of collective responsibility is affected … If “services” are excluded
from legislative and executive domain, the Ministers would be excluded from
controlling the civil servants who are to implement the executive decisions.
But, much like the Maharashtra verdict, this judgment contained a loophole that
would be used by the BJP in the union government, a week later, to its advantage.
Paragraph 95 said that the union government, through the LG, could only exercise
executive power on matters that are excluded from Delhi’s state and concurrent
lists: the police, land, and public order and three other matters connected to it. The
union cannot have an overriding executive control in Delhi’s administration, if
there is no legislation backing it. “However,” the judgment added in Paragraph
164, “if Parliament enacts a law granting executive power on any subject which is
within the domain of NCTD, the executive power of the Lieutenant Governor shall
be modified to the extent, as provided in that law.”
This essentially meant that all the union government had to do was to enact
legislation to grant power to the LG when it came to control of services in Delhi.
And so, within a week of the judgment, the president promulgated an ordinance
that vested the final say on matters of services with the LG. Three months later,
parliament passed the Government of National Capital Territory of Delhi
(Amendment) Act to replace the ordinance. Shah, facing protests from opposition
MPs, relied on Chandrachud’s judgment and specifically quoted “para 95 and para
164” to justify bringing in the law.
Some experts stated that the court was simply interpreting what the Constitution
already states. Article 239AA—and particularly its section (3)(b)—which was the
bone of contention in this entire legal battle, gives an overriding power to
parliament to make laws on any matter for Delhi, including subjects over which
the the territorial government has legislative power. But others pointed out that
Chandrachud’s judgment ought not to have highlighted this in as many words as it
did, and, if it did, ought to have foreseen the government’s move, prevented it and
laid the matter to rest. “Otherwise, what is the point of pontificating about the
principle of constitutional morality and cooperative federalism?” Rahul Mehra,
another Delhi government counsel, told me. “Simply say it, that the parliament
can legislate on everything concerning Delhi.” Faizan Mustafa, the legal scholar,
told me that the judgment did a “half-hearted job,” arguing that the bench should
have rephrased “those paragraphs to restrict the powers of the parliament to take
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the soul out of the judgment.”
The AAP government immediately challenged the ordinance, and subsequently
the act, on grounds of constitutionality before the Supreme Court. In July 2023, a
three-judge bench headed by Chandrachud postulated certain important questions
that required a constitution bench to hear the case.
Although Article 239AA enabled parliament to make laws on any subject, even if it
was within the domain of the Delhi government, could it abrogate the
“constitutional principles of governance,” such as the accountability of the services
towards the elected government? Singhvi objected to the case being referred to a
constitution bench, stating that it would be time-consuming and result in a policy
paralysis in the state, but Mehta was in its favour. Since then, despite at least seven
requests made by the Delhi government’s lawyers before Chandrachud’s bench for
listing of the case, the matter has been left untouched.
A striking parallel can be drawn between the two cases. For Thackeray, the heart of
the battle was the disqualification of rebel legislators, a move that would have set
his political house in order and restored stability. Similarly, Kejriwal’s central fight
was for control over services, a power that would have resolved the ongoing
constitutional conflict in Delhi once and for all. In both cases, the solution was
clear: address the core issue, and the rest would follow. Yet, in both instances,
Chandrachud’s judgments fell short. Instead of tackling the crux of the problem,
his rulings skirted around the edges. While his judgments were dressed in
elaborate legal reasoning and postulated with grand rhetoric, they stopped just shy
of delivering a decisive resolution.
This was similar for cases involving Modi’s corporate allies. In its January 2024
order in the Adani–Hindenburg saga, Chandrachud refused to order a court-
monitored special investigation team or a CBI probe into Adani’s alleged stock
manipulation, instead trusting the Securities and Exchange Board of India’s
“comprehensive investigation,” which it said “inspires confidence.” Months later,
Hindenburg Research revealed that the SEBI chief, Madhabi Puri Buch, had ties to
offshore funds linked to Adani. Prashant Bhushan, who argued in the case, said
they took a “conscious decision” not to approach the Supreme Court in Buch’s
case. “What is the point? The first order shows that there are other considerations
at play. We lost all confidence in the court and Chandrachud’s willingness to take
on Adani.”
In the case over electoral bonds, Chandrachud’s five-judge constitution bench
struck it down as unconstitutional and insisted that the State Bank of India
disclose data on donors and recipients. But, after the disclosures, when he took up
a subsequent petition seeking investigation into alleged quid pro quo dealings, he
dismissed the petition as “premature” and “inappropriate.”
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AS HIS TENURE winds down, Chandrachud is leaning on a series of symbolic
gestures. He unveiled a new statue of Lady Justice in the Supreme Court’s judges’
library—draped in a saree, scales in one hand and a copy of the Constitution in the
other, but notably without the traditional blindfold. Ostensibly, the intent is to
convey the message that the law is neither blind nor punitive.
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DY Chandrachud unveiled a new statue of Lady Justice in the Supreme Court’s judges’ library—draped in a saree, scales in one
hand and a copy of the Constitution in the other, but notably without the traditional blindfold.
The CJI delivered a series of fervent lectures on the very principles he seemed
reluctant to enforce. “As a judge, you do not have the luxury of accepting or not
accepting the brief because you have to answer everything on your board every
day,” he said. In another lecture, he said that a judge could find 25 technical
reasons to deny relief, “but, to my mind, one single justification to grant relief is all
that is necessary.” He sometimes seemed defensive.
Speaking about meetings between government heads and chief justices, he said,
“We do meet but that doesn’t mean that there is some deal cracked … But surely we
must have the maturity to understand it [meetings] has no bearing at all on our
judicial work.”
Yet Chandrachud’s legacy will likely be remembered less for his lofty ideals and
more for the troubling precedents he set during a time marked by the judiciary’s
quiet submission to executive power. Instances of selective case assignments
favouring the government, weakening the collegium’s resistance to political
influence and rulings that subtly opened doors for the executive painted a portrait
of a judiciary retreating from its role as a check on power, while publicly
maintaining a progressive image. This pattern has marked much of Chandrachud’s
judicial style, especially as the CJI. Chandrachud is “suffering from delusions of
grandeur,” Dave said in an interview. He argued that, on both the Ganesh Puja
with Modi and the statement about asking god for a solution in the Ram
Janmabhoomi case, he knew exactly what he was doing. “Perhaps these two
statements were made keeping in mind some kind of future reward, some kind of
a quid pro quo,” he said. “Because he is trying to tell those in power, after all, I am
a proud Hindu.”
“Before he became chief justice, he often used to say, ‘Independence of the
judiciary means you must speak truth to power.’ But he doesn’t say that anymore,”
Colin Gonsalves observed. “He knows people understand that he was unable to
speak truth to power.” Like the new Lady Justice statue, Chandrachud has likely
done this with his eyes open.
SAURAV DAS is an independent journalist based in New Delhi, covering legal affairs and
policy issues.
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“This issue is not the individual—the issue is what impact such a clip has on
the minds of people,” Kapil Sibal, the president of the Supreme Court Bar
Association, said during a press conference, the day after the meeting. “And if
there is gossip around it, then it is not fair on the institution.”
The senior judge from the Allahabad High Court could not help but recall
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Chandrachud’s earlier stance on maintaining the public perception of judicial
independence. “He held Ganesh Puja every year when he was here, but it was
always only for sitting judges and their spouses. No politicians were ever invited,”
he said. “The standards he once held himself to make this entire affair both
surprising and disappointing to watch.” The contrast between 2016 and 2024 is
stark: where Chandrachud once seemed cautious about any appearance of
susceptibility to political influence, his actions as CJI now frequently cross those
boundaries.
THE OFFICE OF THE CJI is the nerve centre of the judiciary. The
responsibilities that accrue to the CJI have a massive bearing on the democratic life
of the country. As administrative head of the court, they have the authority to
assign cases, to decide which judges sit on which benches and to constitute
constitution benches to address matters of national importance. The higher courts
have the powers of judicial review, to ensure actions taken by the executive are
consistent with the Constitution—a safeguard against government overreach. A
great burden, therefore, lies on the CJI to protect the independence of the judiciary
and to commit the country, through its courts and its lawyers, to the rule of law
and justice. In many ways, the health of India’s democracy is intertwined with how
the CJI balances these critical responsibilities.
On 9 November 2022, when DY Chandrachud was sworn in as the fiftieth CJI at
Rashtrapati Bhavan, he had his work cut out for him. Modi was looking to secure a
third term in the 2024 general election. In the two terms he had been in power, the
BJP significantly advanced the Rashtriya Swayamsevak Sangh’s desire for a Hindu
Rashtra. A series of policies and laws enacted by the Modi government posed an
existential threat to religious minorities and allowed core constitutional values,
such as secularism and federalism, to be subsumed by majoritarian Hindu-
nationalist sentiment.
The mainstream media, servile to the government, openly vilified Muslims,
promoted conspiracies such as “love jihad” and grew aggressive toward dissenters.
Activists such as Umar Khalid, a frequent media target, were arrested on flimsy
grounds under the draconian Unlawful Activities (Prevention) Act and were
repeatedly denied bail. Investigative agencies pursued opposition leaders, often
dropping charges when the politicians joined the BJP. In 2017, the government
passed the electoral bonds scheme, facilitating undisclosed corporate donations to
political parties, encouraging quid pro quo arrangements. The government was
able to tinker with the composition of the Election Commission of India and,
during the 2024 campaign, the BJP openly flouted election laws without serious
consequences. The Sweden-based V-Dem Institute, which monitors democratic
freedoms globally, classified India as an “electoral autocracy” in 2018 and, by
March 2024, concluded that India’s liberal democracy had deteriorated to levels
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reminiscent of the Emergency era under Indira Gandhi’s rule.
Under the Modi government, activists such as Umar Khalid, a frequent media target, have been arrested on flimsy grounds
under the draconian Unlawful Activities (Prevention) Act and have repeatedly been denied bail by the courts. RAJ K RAJ /
HINDUSTAN TIMES / GETTY IMAGES
The judiciary’s role in this has been a key part of the story. A series of CJIs over the
last decade have largely failed to counter the slide into authoritarianism. During
this period, the judiciary has ignored its own rules and conventions, with judges
ruling on cases in which they held a personal stake and facing allegations of
“bench-fixing,” sexual harassment and corruption. But also, as this magazine has
covered before, CJIs such as Ranjan Gogoi, on several key issues, delivered
judgments that propelled the Modi government’s ideological agenda.
So, the burden of expectation on an erudite man with a sophisticated demeanour
was immense, particularly among India’s liberal elites. Chandrachud was
celebrated by a section of the media as a “rockstar judge,” a culturally liberal jurist
who was unafraid to tackle complex and critical issues. Whatever he did as a
Supreme Court judge—whether small or substantial—served to project a more
hopeful future when compared to the legacies of his predecessors. When Modi did
not show Chandrachud’s swearing-in ceremony, it bolstered the idea that this was
a beginning of a new era, in which the judiciary would stand as a bulwark against
the executive’s excesses. Chandrachud’s tenure was also going to be the longest in
a decade: a solid two years.
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However, based on my conversations with over forty lawyers and judges, as well as
with Chandrachud’s friends and colleagues, a complex picture emerged of a man
whose intellectual agility was accompanied by an aversion to risk. In many
instances, he hedged his judicial stance in ways that avoided outright
confrontations with political power—a quality that seemed like pragmatism but, in
reality, was an unwillingness to challenge the status quo.
There has frequently been a distance between what Chandrachud has espoused in
speeches and judgments and how he has acted—sometimes undermining his own
previously held positions, sometimes contradicting the logic within the same
judgment.
His judgments were often crafted to critique historical or political wrongs but
failed to hold power to account—even in cases where the judiciary was expected to
serve as a check on majoritarianism and to uphold constitutional values. “It begins
in a certain manner, talking of great ideals, but by the time you reach the
conclusion, it becomes entirely different,” a senior advocate at the Supreme Court
told me. Perhaps the starkest example of these tendencies involved the 2019 Ram
Janmabhoomi verdict, for which Chandrachud was on the bench. The judgment’s
solution to a longstanding political dispute was to allow the construction of a
temple on the site of a mosque demolished by Hindutva mobs in 1992. Similarly, in
rulings on Maharashtra’s political crisis and Delhi’s bureaucratic power struggle,
his judgments seemed to endorse one stance but ultimately favoured the Modi
government. He was also part of the bench that dismissed calls for an investigation
into the mysterious death of BH Loya, a judge hearing a murder case involving
Modi’s lieutenant Amit Shah, because he found “a ring of truth” in the testimonies
of four judicial officers.
But, across the board, the people I spoke to for the profile were unanimous about
one thing: Chandrachud’s intellectual prowess and legal acumen. “He is
intellectually very bright, academically brilliant—he has been one of the best
minds in our Supreme Court,” the senior advocate Dushyant Dave told me. “There
are moments in his courtroom that you truly enjoy as a lawyer,” the senior
advocate Rebecca John said. “When you see this sharp judge, intellectually
nuanced, dictating an order on the spot, breaking down complex issues with such
beauty and ease, these are the things that bring a smile to a lawyer’s face. He was
capable of that.”
In court, Chandrachud is usually a man of composure. He rarely gives in to the
provocations of heated legal battles. Whether he addresses senior lawyers or
juniors, his tone is consistently gentle, offering everyone a fair and patient hearing.
The legal scholar Gautam Bhatia remembered him as being particularly “warm
and generous with younger people.” Many friends and former colleagues described
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Chandrachud as a reserved and hardworking man.
“He was incredibly hardworking, yes, but sometimes it came at the cost of others,”
a retired Supreme Court judge told me. “He preferred to write judgments in all
cases himself, not leaving much space for collaboration or working on building
consensus.” Another retired Supreme Court judge described Chandrachud as “very
cagey.” Although he would remain accessible to bar associations, he remained
somewhat distant from other judges.
Several scholars and lawyers referred to him as a “jurist judge,” as one who thinks
deeply, borrows extensively from international jurisdictions and adapts them to the
Indian context. “He goes into jurisprudential issues, theorises them brilliantly in
his judgments,” the first retired Supreme Court judge said. “But a judge’s job is not
merely to do that. It is also to decisively decide what is before you for today. In that
sense, Dhananjaya is more of a professor writing for Harvard Law Review than a
judge judging a case and ending conflicts.” In Chandrachud’s own telling, he sees
many of his judgments as “laying the groundwork” for future jurists to pick up,
“without overreaching in the present.”
“The problem with this approach is that it completely ignores the fact that the
Supreme Court is invariably at the centre of politics in India,” the second retired
Supreme Court judge said. The CJI’s office, “by its very nature, needs to deal with
the executive, most times head on. This is what the job demands. If you say this at
the cost of the other, you are being intellectually dishonest.”
At an India Today event in March 2023, Chandrachud was asked if he faced any
external pressure during his tenure. He unequivocally denied any government
intervention and presented the problem as largely an internal one. “If you talk of
pressure in the sense of pressure on the conscience, pressure on your mind,
pressure on your intellect, yes, of course,” he said. “I’ll be a hypocrite if I say the
cases which come up before us don’t give rise to a sense of doubt, a sense of
searching for the correct solution … there is more than one solution to a case that
can emerge.” For some cases, however, his search for answers appeared to reach
beyond constitutional reasoning. Chandrachud stated in October this year that,
before delivering the Ram Janmabhoomi judgment, which granted material victory
to the Hindu Right, he “sat before the deity and told him he needs to find a
solution for this.”
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Hindu devotees and lawyers celebrate after the verdict on the Ayodhya case, which handed a material victory to the Hindu
Right. SONU MEHTA / HINDUSTAN TIMES / GETTY IMAGES
As head of the collegium—a judicial creation for appointing judges, based
specifically on the promise of protecting the independence of judiciary—many
expected Chandrachud to promote talent and set the house in order. But several
judges, including the two retired Supreme Court judges, told me that the collegium
under Chandrachud handed the executive more power in administrative decision-
making. Many points of friction between the government and the collegium on the
transfers and elevations of specific judges were ironed out—often in favour of the
latter. “This is largely because the court is submitting,” the first retired Supreme
Court judge told me. He said he was aware of an instance where a judge had told
the CJI, “Listen, if you don’t push back, who else will? Can you expect [future
CJIs] with shorter tenures to defend?’” Dave, too, was unimpressed. “Simply put,”
he told me, Chandrachud “made no efforts to galvanise the system from within, to
motivate the judges from across the country, to take corrective steps from the
inside.”
Chandrachud’s use of his role as “master of the roster” has also raised concerns
about the way he has exercised discretion in assigning cases. In his first year as CJI,
he assigned several politically sensitive cases to Bela Madhurya Trivedi, a junior
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judge who consistently ruled in favour of the Modi government. Many of these
cases were assigned to her bench in violation of existing conventions.
Torn between the ideals he espouses and the apparent concessions he makes to
political pressures, Chandrachud appears to have made a habit of hedging. “He
vacillates because he cannot stand up to the government, not just because of a shift
in view,” the first retired Supreme Court judge insisted. “He doesn’t want to
displease them beyond a point. Considerations like this and the public’s reaction
are always in his mind.” The high hopes his tenure initially inspired have been
vastly tempered. The need of the hour was someone to lead with the courage of
their convictions, someone who could restore the balance between the judiciary
and the executive. “As chief justice,” Rebecca John said, “you must have the moral
strength to withstand pushback, particularly from a muscular state.” By most
accounts, this has not been the case. Dave said that Chandrachud’s tenure “has
been two steps forward, four steps backward, six steps sideways.”
{TWO}
ON 25 JUNE 1975, the Indira Gandhi government imposed a nationwide
Emergency, suspending several fundamental rights, including the right to life and
personal liberty. This led to widespread protests and human-rights abuses. In 1976,
the Supreme Court’s constitution bench in ADM Jabalpur vs Shivkant Shukla was
asked to determine whether individuals detained under preventive detention laws
could challenge their arrests in high courts. The petitioners argued that the right to
life and liberty was a natural right, existing prior to the Constitution, and thus
inviolable. However, the court permitted the suspension of this right in the state’s
interest, preventing high courts from hearing detainees’ pleas for liberty. Yeshwant
Vishnu Chandrachud, Dhananjaya’s father, was part of the majority opinion. The
judgment was later criticised as a stain on the court’s legacy.
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The Indira Gandhi government imposed a nationwide Emergency in 1975, suspending several fundamental rights, including the
right to life and personal liberty.
Yeshwant became CJI two years later, serving until 1985, the longest anyone has
held the position. He was a second-generation lawyer from a Marathi Brahmin
family. His father, Vishnu Chandrachud, served as a diwan in the princely state of
Sawantwadi. By the time Dhananjaya was born, on 11 November 1959, Yeshwant’s
legal practice was flourishing, setting him on a path toward a judgeship at the
Bombay High Court. Dhananjaya’s own legal career would later advance swiftly,
supported by his father’s reputation and connections. Once he would get to the
Supreme Court himself, in KS Puttuswamy vs Union of India in 2017, Dhananjaya
would overturn his father’s ruling in ADM Jabalpur, describing it as “seriously
flawed.”
But, back in April 1976, as news of the judgment made headlines, a 17-year-old
Dhananjaya appeared quietly proud. An old classmate recalled seeing him smile
among friends in the corridors of Delhi’s prestigious St Stephen’s College, as they
expressed admiration for his father. While the college, leaning liberal, held fierce
debates on political issues—strongly resenting Indira’s actions—Dhananjaya
stayed above the fray. “He was somewhat reserved and kept his views to himself,”
Nandita Narain, a batchmate and now retired professor at Delhi University,
recalled. He was well-liked across the board, seen as intelligent and focussed.
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“Many looked up to him in college,” Shavak Srivastava, who attended St Stephen’s
with him, told me.
Parag Tripathi, a senior advocate and former additional solicitor general, who is a
close friend of the CJI, recalled that by the time Dhananjaya completed his degree
in economics and mathematics, in 1979, he had already resolved to pursue law and
aim for a judicial career. Both Dhananjaya and Tripathi joined Delhi University’s
faculty of law, where classmates remembered him as “pretty popular” among both
students and professors. His father’s position in the judiciary commanded
reverence. “One of our part-time professors once awkwardly said to Dhananjaya,
‘Give my regards to your sacred parents,’” Tripathi recounted. “We used to tease
him afterward, asking, ‘So, how are your sacred parents?’” Yeshwant, meanwhile,
encouraged Dhananjaya to study law abroad.
By the time Dhananjaya went to Harvard Law School, in 1982, he was married to
Rashmi Chitale. Rashmi, a lawyer herself, was the daughter of the senior advocate
YS Chitale. “Harvard was insular—people only maintained a matter-of-fact
friendship,” Tripathi, who also studied at the university, told me. Their interactions
dwindled abroad. “While I lived in college accommodations, he lived in an
apartment.”
When Dhananjaya returned to India, his father-in-law took him under his wing.
After spending a year and a half working with Chitale, he went back to his home
turf, in 1990, and began practising as a lawyer at the Bombay High Court. One of
his friends described Dhananjaya as a “blue-eyed boy of the Bombay bar and
bench” who came to be well regarded as a constitutional expert. “His father had
generated a lot of goodwill and ensured his son would be appointed to the nth
level,” they told me. “He would maintain contacts in high places. There were many
who would oblige him. Of course, Dhananjaya was a capable person too.”
“My entire recollection of him was his discipline,” Birendra Saraf, Dhananjaya’s
junior for four years and currently the advocate general of Maharashtra, told me.
“He had two main things in life: his work and his family. He used to start working
at 4 in the morning and we used to join him at 7.30 am, by which time he had
already spent three hours working. He was so meticulous with his briefs and had
around twenty-five or more matters in court every day.”
The two retired Supreme Court judges and a senior advocate told me that efforts
were underway to appoint Dhananjaya to the high-court bench when he was 37
years old, an unusually young age for such a role, as candidates were typically
considered only in their late forties. “Dhananjaya was a pampered one in the
judiciary, coddled by his parents,” the first retired Supreme Court judge noted.
However, the proposal faced opposition within the law ministry, which resisted
“changing the norm for one person.” But Dhananjaya did not have to wait long.
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CHANDRACHUD WAS DESIGNATED a senior advocate by the Bombay High
Court in June 1998. Later that year, the Atal Bihari Vajpayee government
appointed him additional solicitor general for the western region, making him one
of the youngest to hold the post. Before he reached the age of 40, he was again
recommended for the bench.
YV Chandrachud was the longest serving chief justice of India, holding the position from 1978 to 1985. PIB
A collegium of the three seniormost Supreme Court judges, including the CJI,
included Chandrachud among its recommendations for the Bombay High Court.
The president at the time, KR Narayanan, objected to his candidature on the
grounds of age. He argued that Chandrachud’s elevation should wait at least until
he turned 42, if not 45. But, according to the two retired Supreme Court judges, the
law minister, Ram Jethmalani, a friend of Yeshwant’s, pushed hard for his
candidature. Chandrachud’s lifelong mentor, Soli Sorabjee, who was the attorney
general at the time, joined the campaign. “All of them come from Bombay,” the
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senior advocate told me. “It’s the Bombay–Bombay connection.” Meanwhile,
Yeshwant was campaigning in Delhi for around ten days, “vociferously pushing his
son’s name.” This time, the campaign worked.
In March 2000, Chandrachud became one of India’s youngest high-court judges.
His fellow appointees to the Bombay High Court were Sharad Bobde and AM
Khanwilkar. The order in which new judges take the oath of office is crucial, since
it determines their seniority on the bench, which, in turn, has an impact on further
elevations, case assignments and even their prospects of becoming the CJI. It is
decided by the date of joining the bar, which meant Bobde should have been sworn
in first, followed by Khanwilkar and then Chandrachud. However, attempts were
made to position Chandrachud higher. The rationale was that he was an ASG and
senior advocate but, as the retired Supreme Court judges pointed out to me, this
did not justify altering tradition. “The sequence was restored,” the second judge
said, “only after Bobde threatened to boycott the ceremony.” Bobde did not respond
to my questions.
Chandrachud was named chief justice of the Allahabad High Court in October