Sabarimala

Chandrachud has authored several judgments on gender justice that call for a 'change in mindsets'^[55] as well as affirm the equal entitlements of women under the Constitution. In the Indian Young Lawyers Association v. State of Kerala case,^[56] he authored a concurring judgment holding that the practice of prohibiting women of menstruating age from entering the Sabarimala temple was discriminatory and violated the fundamental rights of women. In his judgment, he highlighted that "the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III."^[56] He held that:

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

The judgment was acknowledged^[57][58] for recognizing that denying entry into temples to women on the basis of physiology amounted to a constitutionally prohibited practice of untouchability under Article 17.^[59][60][61] He stated that "the social exclusion of women, based on menstrual status, is a form of untouchability, which is contrary to constitutional values. Notions of 'purity' and 'pollution', which stigmatise individuals, have no place in a constitutional order."^[56]

Following protests against the judgment in the State of Kerala,^{[62][63][64][65][66]} a five judge bench of the Indian Supreme Court, while hearing a review petition against the judgment in November 2019, decided to refer the matter to a larger bench. Chandrachud and Nariman (who were both part of the original bench that passed the majority judgment) dissented^[67][68] and held that the parameters for the exercise of the review jurisdiction of the Court had not been met.^[69]

Adultery

In the Joseph Shine v Union of India case^[70] he authored a concurring judgment declaring the provision of the Indian Penal Code which concerned the adultery law in India unconstitutional. Emphasizing the constitutional commitment to equality and dignity, he held that:

The creation of a just, egalitarian society is a process. It often involves the questioning and obliteration of parochial social mores which are antithetical to constitutional morality…The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects… Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption that a woman contracts away her sexual agency when entering a marriage. That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. Such a notion has no place in the constitutional order. Sexual autonomy constitutes an inviolable core of the dignity of every individual.^[70]

His concurring opinion was noticed for its emphasis on the sexual autonomy of women even within the bounds of a marital relationship.^[71][72] He held that:

…. in adjudicating on the rights of women, the Court is not taking on a paternalistic role and "granting" rights. The Court is merely interpreting the text of the Constitution to re-state what is already set in ink — women are equal citizens of this nation, entitled to the protections of the Constitution. Any legislation which results in the denial of these Constitutional guarantees to women, cannot pass the test of Constitutionality.^[70]

It is reported^[73][74] that the above observations have a significant bearing on the law employed for the restitution of conjugal rights as well as the exception carved out in law from criminalizing marital rape. Interestingly, this case was the second case where Chandrachud overruled^{[75][76][77][78][79]} a decision of his father, former Chief Justice of India Y. V. Chandrachud.

Armed forces

Sexual harassment at the workplace

Recently, he authored a judgment which affirmed that sexual harassment at the workplace violates the fundamental rights of women guaranteed under the Indian Constitution.^[109] The verdict was based on a complaint made by a senior officer of the Punjab and Sind Bank that she was transferred out from Indore to Jabalpur because she had complained about irregularities and corruption.^[110] The woman, a chief manager and Scale IV officer, said she was also allegedly sexually harassed by her senior officer. He held that:

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

He directed the bank to send the woman employee back to the Indore branch and held that the bank may pass any other order only after she has completed a tenure of one year at the Indore branch.^[111]

Intersectional violence

On April 27, 2021, he authored a judgement^[112] which considered caste and the disability of the woman as a relevant factor in sentencing of the accused for the offence of rape. The judgement further held that a true reading of the SC & ST Act, 1989 shows that it will be attracted to a criminal offence as long as caste identity is one of the grounds for the occurrence of the offence.^[113] This was an important intervention since certain earlier Supreme Court cases had held that a SC & ST Act charge would only be attracted if the crime was committed solely on the ground that the victim belonged to the Scheduled Caste or Scheduled Tribe community.^[114]

Chandrachud undertook an intersectional analysis to examine how gender violence can be a result of combination of various oppressions and observed that, "[w]hen the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds. Trans women may face violence on account of their heterodox gender identity. In such a situation, it becomes imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman."^[115]

He further criticised single axis legislations which focus on oppression on account of a singular source, be it caste, gender or disability, noting that they make invisible the experiences of minorities within these broader groups who suffer on account of multiple oppressions.^[116] Further, he also noted that such legislations impose an unrealistic evidentiary burden on individuals who are at the intersection of various marginalized identities since "evidence of discrete discrimination or violence on a specific ground may be absent or difficult to prove".^[117] He noted that the 2015 amendment to the SC & ST Act, which changed the evidentiary requirement of proving that the crime was committed on the basis of the caste identity to a standard where knowledge of the caste identity was sufficient to sustain a conviction, was a positive development and enabled an intersectional analysis of caste violence.^[118]

Another significant aspect of this judgement was the holding of the Court that testimony of a disabled witness cannot be considered weaker or inferior to their able-bodied counterparts. Chandrachud also issued certain guidelines to make the criminal justice system more disabled-friendly.^[119]

Ordinances

Chandrachud was a part of the seven-judge bench in the Krishna Kumar Singh v. State of Bihar case,^[144] which concerned the re-promulgation of ordinances. The enduring rights theory, according to which the rights and liabilities accrued by virtue of an ordinance were said to have an enduring effect even after the expiration of the ordinance was held bad in law.^[145][146] Chandrachud writing for the majority held that the rights and liabilities accrued during the force of the ordinance would continue to exist even after the expiration of the ordinance only in public interest or on the basis of constitutional necessity and that 'irreversibility' and 'impracticability' are the yardsticks to determine what constitutes 'public interest'.^[146] He observed:

The Constitution bench equated an ordinance with a temporary act enacted by the competent legislature. This approach, with respect fails to notice the critical distinction between an enactment of a competent legislature and an ordinance. Acceptance of the doctrine of enduring rights in the context of an ordinance would lead to a situation where the exercise of power by the Governor would survive in terms of the creation of the rights and privileges…The legislature may not have had an opportunity to even discuss or debate the Ordinance…. The enduring rights theory attributes a degree of permanence to the power to promulgate ordinances in derogation of parliamentary control and supremacy.^[144]

He also observed that laying down ordinances before the Parliament is a mandatory constitutional obligation that cannot be bypassed. The judgment was recognised^[147][145] for expanding the grounds of judicial review of an ordinance and limiting the scope of the mala fide exercise of ordinance promulgation.

The National Capital Territory

Chandrachud was part of the constitution bench in the National Capital Territory v. Union of India case,^[148] in which the nature of power of the Lieutenant Governor of Delhi vis-à-vis the Government of Delhi was decided. The majority unanimously observed that the Chief Minister, not the Lieutenant Governor, is the executive head of the territory and that the Lieutenant Governor had no independent decision-making power, save and except as provided by the Constitution in exceptional situations. It was observed that he had to follow the aid and advice of the Council of Ministers, except when the matter was related to police, public order and land. It was also held that by virtue of Article 239AA(4) of the Indian Constitution, the Lieutenant Governor could, in the case of any disagreement between the Delhi Government and the Lieutenant Governor, refer 'exceptional' matters to the President seeking his opinion. In such cases, the decision of the President would be final. Chandrachud's concurring opinion which was commented upon for its clarity and nuance,^[149] held that an 'exceptional matter' is one in which "the Government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union Government". Chandrachud emphasized on the obligation of the Lieutenant Governor to abide by the aid and advice of the Delhi Government and observed that the interpretation that aids the basic features of representative governance and the cabinet form of government should be adopted. He held:

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

Floor test for elections

Chandrachud authored a judgment with far reaching consequences in the political sphere in the Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly case.^[150] Chandrachud held that the Governor's exercise of power to convene the legislative assembly for a floor test during an ongoing session of the assembly was "legitimate to the purpose of ensuring that the norm of collective responsibility is duly preserved". He accepted the submission that the Governor commands the power to order a floor test if the Governor has – based on "objective material" – reasons to believe that the government has lost its majority. Significantly, he noted that the power of the Governor is not unbridled in the following terms:

Where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review. The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons which were relevant and germane to the exercise of the power. The exercise of such a power is not intended to destabilize or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it.^[150]

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

The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state our democratic politics. It is an unfortunate reflection of the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of the politics to lure away persons from rival camps… It is best that courts maintain an arm's length from the sordid tales of political life. In defining constitutional principle, however, this Court must be conscious of the position on the ground as admitted by Counsel of both sides and an effort has to be made to the extent possible to ensure that democratic values prevail.^[150]

Doctrine of legitimate expectations

Chandrachud authored a judgment in The State of Jharkhand v. Brahmputra Metallics Limited case, where at issue was a notification issued by the State of Jharkhand under which the electricity rebate under the Industrial Policy of 2012 was granted only from 2015 onwards.^[151] While the High Court of Jharkhand had struck down the notification based on the doctrine of promissory estoppel, Supreme Court's judgment, through an analysis of English and Indian law, clarified that its basis would instead be the doctrine of legitimate expectation. The Court held that the doctrine of legitimate expectations was one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 of the Constitution of India finds concrete expression.^[152] In striking down the notification, Chandrachud came down harshly on the lethargic attitude of the State of Jharkhand in belatedly issuing the notification and held:

"It is one thing for the State to assert that the writ petitioner had no vested right but quite another for the State to assert that it is not duty bound to disclose its reasons for not giving effect to the exemption notification within the period that was envisaged in the Industrial Policy 2012. Both the accountability of the State and the solemn obligation which it undertook in terms of the policy document militate against accepting such a notion of state power. The state must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the state will act according to what it puts forth in the public realm. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary state action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest."^[153]

COVID- 19: In Re: Distribution of essential supplies and services during pandemic

During the second wave of the COVID-19 pandemic in India in April 2021, a bench of the Supreme Court of India headed by the then Chief Justice SA Bobde, Justice LN Rao and Justice S Ravindra Bhat, took suo motu cognizance of the situation in the country to deal with issues pertaining to the availability of oxygen supply, essential drugs and modalities for vaccination. After the retirement of Chief Justice Bobde on 23 April 2021, the bench composition was altered with Chandrachud replacing Chief Justice Bobde.

The Supreme Court bench led by Chandrachud highlighted that the exercise of its suo motu jurisdiction was to discharge its constitutional duty as protector of the fundamental rights during a pandemic, along with the High Courts and not in usurpation of their jurisdiction.^[154] Additionally, the bench adopted a bounded-deliberative approach ^[155] to facilitate dialogue between the Union Government, various State Governments and the relevant stakeholders in order to assess the policy of the Union Government on the touchstone of Article 14 (right to equality) and Article 21 (right to life) of the Constitution of India.^[156] Through a series of directions, the Supreme Court directed the Union Government to formulate a national hospital admission policy to ensure no person is denied medical aid on grounds of non-residency in a particular State and raised concerns regarding the augmentation of medical oxygen available and steps taken by the Government. Pertinently, the Supreme Court had made critical observations on the Liberalised Vaccination Policy of the Government of India and noted that the vaccination policy of free vaccination for persons above the age of 45 and paid vaccination for persons between 18 and 44 years was prima facie arbitrary and irrational.^[157] The court also sought justification for the decentralised procurement leaving the State Governments to approach global vaccine producers, instead of the Union of India acting collectively; concerns regarding augmentation of vaccine production, issues relating to the modality of vaccination through the use of a digital platform, CoWIN given the digital divide in urban and rural India. In light of these issues, the Union Government was directed to provide justifications or revise its policy.^[158]

A week after the Supreme court order, the Narendra Modi led Government revised its vaccination policy, centralising its procurement and providing free vaccination to all adults, including between ages 18–44 years. It is widely believed that the change in the vaccination policy was a result of the continuous engagement of the Supreme Court with the Government and its scathing remarks against the Government's vaccination policy.^{[159][160][161]}

Disability rights

In the Vikash Kumar v. Union Public Service Commission case,^[168] Chandrachud elaborated on the concept of reasonable accommodation under the Rights of Persons with Disabilities Act, 2016. In the case, an appellant, who was a civil servant aspirant, suffered from writer's cramp. His application for writing the exam with the assistance of a scribe was rejected by the UPSC as he did not have a benchmark disability under the Act. Chandrachud while allowing the petition held that the concept of reasonable accommodation is at the heart of the Act. It is a positive obligation of the State and private parties to provide additional support to persons with disabilities to ensure their participation in the society. He further held that disability is a social construct which has to be remedied by ensuring conditions that facilitate development of the disabled and must meet the needs of every individual disabled person. Chandrachud also stressed on the intersectional nature of disability based discrimination. In doing so, he held that a previous decision of the Supreme Court in the V. Surendra Mohan v. Tamil Nadu case, where the Court refused to allow a visually disabled person from becoming a judicial officer, did not incorporate the principle of reasonable accommodation as it was rendered under the old Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and would no longer be a binding precedent.^[169]

Insurance law

Chandrachud has authored opinions regarding the interpretation of insurance contracts. In one such decision,^[173] a claim was filed by the wife of the deceased who while riding his motorcycle, experienced pain in the chest and shoulder, suffered a heart attack and fell from the motorcycle. Chandrachud discussed extensively the jurisprudence on insurance law in various jurisdictions, dealt with the interpretation of the expressions 'accident', 'bodily injury' and 'outward, violent and visible means'. He rejected the claim noting that there is no evidence to show that any bodily injuries were suffered due to the fall from the motorcycle or that it led to the assured suffering a heart attack.^[173]

In another decision,^[174] Chandrachud relied on the doctrine of uberrimae fidei and held that any suppression, untruth or inaccuracy in the statement in the proposal form by the insured is a breach of the duty of good faith and will render the policy voidable by the insurer. Chandrachud noted that the system of adequate disclosures helps to narrow down the gap of information asymmetries between the parties and helps the insurers to assess their risk appetite. He held:

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

In a judgment reported in national media,^{[175][176][177][178][179]} Chandrachud dealt with the question of whether a death caused due to malaria occasioned by a mosquito bite constituted a 'death due to accident' covered under the terms of an insurance policy.^[180] He rejected the contention that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. Chandrachud noted the distinction between the occurrence of a disease which may be considered as an accident and a disease which occurs in the natural course of events. He referred to the World Health Organization's World Malaria Report 2018 and noted that in a country severely afflicted with malaria, the mosquito bite was neither unexpected nor unforeseen and therefore, death caused by a mosquito bite would not be covered by the insurance policy.

Insolvency law

Chandrachud has recently authored key judgments in relation to the Insolvency and Bankruptcy Code, 2016. In the Phoenix Arc Private Limited v. Spade Financial Services Limited case, the issue before the Supreme Court was whether entities who may have been related parties of a corporate debtor at the time of acquiring of a financial debt, but are no longer related parties, can be excluded from the Committee of Creditors.^[181] In taking a purposive approach to the issue, Chandrachud looked at the objects of the Insolvency Code and highlighted the importance of checking on actions where the "related party financial creditor devises mechanism to remove its label of a 'related party' before the Corporate Debtor undergoes CIRP, so as to be able to enter the CoC and influence its decision making at the cost of other financial creditors."^[182]

Further, Chandrachud also held that "collusive transactions" between two parties would not give rise to "financial debt" for the purposes of Insolvency Code, since the nature of transaction needs to be ascertained to ensure that parties do not collude to the detriment to legitimate creditors.^[183] In the Ramesh Kymal v. M/S. Siemens Gamesa Renewable Power Private Limited case, Justice Chandrachud clarified that the ordinance suspending applications under the Corporate Insolvency Resolution Process after 25 March 2020, in accordance with Section 10A of the Insolvency Code,^[184] which had been introduced on 5 June 2020, would also affect any pending application that had been filed after 25 March 2020, since that was consciously the cut-off date chosen by the Parliament.^[185]

Chandrachud delivered a significant judgment in the Gujarat Urja Vikas Nigam Limited v. Amit Gupta case, where the termination of a Power Purchase Agreement with the corporate debtor, solely on account of its insolvency, was under challenge.^[186] The judgment clarified the jurisdiction of the National Company Law Tribunal and National Company Law Appellate Tribunal by holding that their jurisdiction is limited to adjudicating disputes which arise solely from or which relate to the insolvency of the Corporate Debtor.^[187] It also analysed the validity of ipso facto clauses in contracts, which allow termination solely on a party entering insolvency proceedings, across international materials and other jurisdictions.^[188] Noting that the validity of such clauses was unclear in India, the judgment resorted to dialogical remedy to direct the Parliament to provide legislative guidance.^[189] In the present case, however, the Supreme Court noted that the Power Purchase Agreement was the sole contract of the corporate debtor and held:

"Given that the terms used in Section 60(5)(c) are of wide import, as recognized in a consistent line of authority, we hold that the NCLT was empowered to restrain the appellant from terminating the PPA. However, our decision is premised upon a recognition of the centrality of the PPA in the present case to the success of the CIRP, in the factual matrix of this case, since it is the sole contract for the sale of electricity which was entered into by the Corporate Debtor. In doing so, we reiterate that the NCLT would have been empowered to set aside the termination of the PPA in this case because the termination took place solely on the ground of insolvency. The jurisdiction of the NCLT under Section 60(5)(c) of the IBC cannot be invoked in matters where a termination may take place on grounds unrelated to the insolvency of the corporate debtor. Even more crucially, it cannot even be invoked in the event of a legitimate termination of a contract based on an ipso facto clause like Article 9.2.1(e) herein, if such termination will not have the effect of making certain the death of the corporate debtor. As such, in all future cases, NCLT would have to be wary of setting aside valid contractual terminations which would merely dilute the value of the corporate debtor, and not push it to its corporate death by virtue of it being the corporate debtor's sole contract (as was the case in this matter's unique factual matrix)."^[190]

In the Arun Kumar Jagatramka v. Jindal Steel and Power Ltd. case, Chandrachud barred back-door entry under the Companies Act, 2013 to a promoter of a corporate debtor who is barred from submitting a resolution plan under the Insolvency Code, to submit a scheme of arrangement under the Companies Ac, 2013.^[191] The Supreme Court, while noting that promoters ineligible under the Insolvency Code cannot be allowed a back-door entry through the Companies Act, 2013, held that "[p]roposing a scheme of compromise or arrangement under Section 230 of the Act of 2013, while the company is undergoing liquidation under the provisions of the IBC lies in a similar continuum. Thus, the prohibitions that apply in the former situations must naturally also attach to the latter to ensure that like situations are treated equally."^[192]

The judgment was hailed for clarifying the inconsistencies in legal position caused by varying decisions of the National Company Law Tribunals.^[193] Through the judgment, the Supreme Court also upheld the constitutional validity of Regulation 2B of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, which provides that a party ineligible to propose a resolution plan under the Insolvency Code cannot be a party to a compromise or arrangement.^[194] The judgment was also considered of particular importance, since the Supreme Court noted that scheme and arrangements in the Corporate Insolvency Resolution were introduced only through the judicial intervention of the National Company Law Appellate Tribunal, and cautioned them to keep such an intervention to a minimum so as to not destroy the sanctity of the Insolvency Code.^[195]

Surveillance

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

The risks which the use of Aadhaar "for any purpose" carries is that when it is linked with different databases (managed by the State or by private entities), the Aadhaar number becomes the central unifying feature that connects the cell phone with geo-location data, one's presence and movement with a bank account and income tax returns, food and lifestyle consumption with medical records. This starts a "causal link" between information which was usually unconnected and was considered trivial. Thus, linking Aadhaar with different databases carries the potential of being profiled into a system, which could be used for commercial purposes. It also carries the capability of influencing the behavioural patterns of individuals, by affecting their privacy and liberty. Profiling individuals could be used to create co-relations between human lives, which are generally unconnected… When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual's life.^[211]

At the time when the case was being heard before the Supreme Court, whistleblowers had warned of the possible implications of the infrastructure in creating a surveillance state.^[218] Following the judgment, academicians documented the growth in state surveillance^[219][220]

Privacy

He held that informational self determination (as a facet of privacy) and bodily integrity impart to the biometric details of every person a high degree of privacy. He held that the absence of consent within the Act, the extent of information disclosed, the expansive scope of the term "biometrics", the burden placed upon the individual to update her own biometrics, and lack of access to the record, cumulatively constitute a serious infringement of privacy.^[213]

Proportionality

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

The test of proportionality stipulates that the nature and extent of the State's interference with the exercise of a right (in this case, the rights to privacy, dignity, choice, and access to basic entitlements) must be proportionate to the goal it seeks to achieve (in this case, purported plugging of welfare leakage and better targeting… … by collecting identity information, the Aadhaar program treats every citizen as a potential criminal without even requiring the State to draw a reasonable belief that a citizen might be perpetrating a crime or an identity fraud. When the State is not required to have a reasonable belief and judicial determination to this effect, a program like Aadhaar, which infringes on the justifiable expectations of privacy of citizens flowing from the Constitution, is completely disproportionate to the objective sought to be achieved by the State… the state has failed to demonstrate that a less intrusive measure other than biometric authentication will not sub serve its purposes.^[211]

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

Technological error would result in authentication failures. The concerns raised by UIDAI ought to have been resolved before the implementation of the Aadhaar project. Poor connectivity in rural India was a major concern. The majority of the Indian population lives in rural areas. Even a small percentage of error results in a population of crores being affected. Denial of subsidies and benefits to them due to the infirmities of biometric technology is a threat to good governance and social parity… No failure rate in the provision of social welfare benefits can be regarded as acceptable. Basic entitlements in matters such as food grain, can brook no error. To deny food is to lead a family to destitution, malnutrition and even death.^[211]

Money bill

Considered the 'heart' of his dissent,^[221] Chandrachud struck down of the entire Act as it was passed as a Money bill. Chandrachud noted that while "Ordinary bills can be passed only when they are agreed to by both Houses… the Constitution carves out a limited role for the Rajya Sabha in the passage of Money Bills."^[211] He noted that in the case of a Money Bill, the Rajya Sabha has no amending power, but merely the power to recommend changes which are not binding on the Lok Sabha. In other words, any change that the Rajya Sabha wishes to seek in the bill can be rejected in its entirety by the Lok Sabha.

Chandrachud proceeded by affirming that there is a degree of "constitutional trust" that attaches to a certificate by the Speaker of the House certifying a bill as a Money Bill and is open to judicial review:

The purpose of judicial review is to ensure that constitutional principles prevail in interpretation and governance. Institutions created by the Constitution are subject to its norms. No constitutional institution wields absolute power. No immunity has been attached to the certificate of the Speaker of the Lok Sabha from judicial review, for this reason… Constitutional courts have been entrusted with the duty to scrutinize the exercise of power by public functionaries under the Constitution. No individual holding an institutional office created by the Constitution can act contrary to constitutional parameters... If our Constitution has to survive the vicissitudes of political aggrandisement and to face up to the prevailing cynicism about all constitutional institutions, notions of power and authority must give way to duties and compliance with the rule of law^[211]

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

Bicameralism, when entrenched as a principle in a constitutional democracy, acts as a check against the abuse of power by constitutional means or its use in an oppressive manner. As a subset of the constitutional principle of division of power, bicameralism is mainly a safeguard against the abuse of the constitutional and political process. A bicameral national parliament can hold the government accountable and can check or restrain the misuse of government power. Among its other roles is that of representing local state units, acting as a body of expert review, and providing representation for diverse socio-economic interests or ethno-cultural minorities.^[211]

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

A Bill, to be a Money Bill, must contain only provisions which fall within the ambit of the matters mentioned in Article 110…The Lok Sabha cannot introduce and pass a legislative measure in the garb of a Money Bill, which could otherwise have been amended or rejected by the Rajya Sabha. Bicameralism is a founding value of our democracy. It is a part of the basic structure of the Constitution. Introduction and passing of a Bill as a Money Bill, which does not qualify to be a Money Bill under Article 110(1) of the Constitution, is plainly unconstitutional… Introducing the Aadhaar Act as a Money Bill has bypassed the constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act as a Money Bill is an abuse of the constitutional process. It deprived the Rajya Sabha from altering the provisions of the Bill by carrying out amendments. Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution… This debasement of a democratic institution cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures.^[211]

One academician wrote shortly thereafter that Chandrachud's reading of the constitutional provision and assessment of the Aadhaar Act upheld "the delicate balance of bicameralism" which lies at the heart of India's parliamentary democracy"^[222]

Individual, state and identity

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

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

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

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

Aftermath of the dissent

Chandrachud's dissent has received academic analysis^[216][223] and has led some scholars to write that the dissent ranks alongside the great dissents in the history of the Indian Supreme Court. Lead commentators and experts described the dissent as 'stirring',^[224] 'fiery',^[225] 'historic',^[216] 'stinging'^[226] and 'lone yet powerful'.^[227] Some invoke in reference to the dissent the famous lines of Chief Justice Charles Hughes^[228][229] that "a dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed." His dissent was noticed in judicial pronouncements elsewhere in the world.

In the judgment concerning the constitution validity of the Jamaican National Identification and Registration Act, Chief Justice Sykes relied on Justice Chandrachud's dissenting opinion to strike down the Act.^{[230][231][232][233][234]} He commended the dissent in the following terms:

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

One constitutional law expert observed^[235] that:

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

Later, Chandrachud's observations on the aspect of the Money Bill were resurrected by a constitution bench in the Roger Mathew v South Indian Bank Ltd case.^[236] Chief Justice Gogoi, writing for the majority held that the law on Money Bills must be "given an appropriate meaning and interpretation to avoid and prevent over-inclusiveness or under-inclusiveness". Noting deficiencies in the reasoning of the majority in the Aadhaar judgment and referring the question of law on money bills to a bench of a higher strength, he stated:

Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word 'only' in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a "Money Bill" do not conform to Article 110(1)(a) to (g)... Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5), we accordingly direct that this batch of matters be placed before Hon'ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.^[236]

Chandrachud agreed with the majority that the law on the Money Bills must be clarified. Consequently, the matter is pending further consideration by the Supreme Court.^[237]

On 11 January 2021, Chandrachud further was the lone dissenter against the dismissal of review petitions filed against the judgement dated 28 September 2018 (which upheld the constitutionality of Aadhar) on the ground that the aspect of what constitutes a 'Money Bill' under Article 110 of the Indian Constitution, which was the heart of the matter and a potential fraud on the constitution,^[215] has been referred to a larger bench by another constitutional bench of the Supreme Court, which is yet to be constituted.^[238]