Harikartik Ramesh*
The retirement of Chief Justice Chandrachud has led to a reckoning about the impact of his time at the helm of the Supreme Court. Saurav Das has focused on the impact of the behind-the-scenes politicking that accompanies the job of the Chief Justice of India; Gautam Bhatia has reflected on his usage of the Master of the Roster position; whilst Vijay K Tiwari critiques the narrative of Chandrachud’s "progressive" jurisprudence on disability rights. This post aims to examine how the Chandrachud Court approached the issue of gender equality during his approximately two-year tenure at the head of the Supreme Court.
At the outset, it is worth clarifying the boundaries of the piece. Gender discrimination does not merely refer to discrimination based on the gender assigned by birth, but also includes discrimination based on sexual orientation. Although conceptually different, in terms of equality law, both gender and sexuality are protected from discrimination under Article 15, which is the guarantee against discrimination based on sex (for more on this see Justice Chandrachud’s opinion in Navtej Singh Johar). Additionally, the piece will focus on situations which called for the Court to marshal the Constitution in interpreting legislation. Only Chief Justice Chandrachud’s opinions shall be analyzed in this piece.
This leaves two judgments for examination, and in particular, Supriyo v Union of India which decided the constitutionality of the Special Marriage Act’s exclusion of same-sex marriage and that of same-sex couples from adoption. However, to understand Supriyo it is imperative to first see why there was hope in Justice Chandrachud revamping India’s equality code. Therefore, Part I of this piece shall discuss his cases from the 2010s that led to this hope being established; Part II shall focus on his judgment from X v Principal Secretary which occurred just prior to his elevation as the Chief Justice; Finally, Part III will analyze his judgment in Supriyo.
Establishing Hope
There were high hopes that the Indian gender discrimination regime, riddled with archaic doctrines, was about to be modernized by Justice Chandrachud's elevation to the post of Chief Justice. After all, prior to becoming the Chief Justice, Justice Chandrachud had authored several important judgments which seemed to be setting the stage for a total upheaval of India’s non-discrimination code when it came to discrimination against women and sexual minorities.
In Navtej Singh Johar, Justice Chandrachud confirmed the rights of homosexuals within Article 15’s pledge of non-discrimination, whilst at the same time cementing an approach to equality which would include indirect discrimination, directly rebutting the infamous Nergesh Mirza sex-plus doctrine (for more information about Nergesh Mirza read Shreya Atrey on the topic).Instead of focusing only on the anti-sodomy provision’s violation of sexual autonomy, Justice Chandrachud went a step further and noted that it was no defense to claim that homosexuals were not particularly named by the provision, and that in practice it was weaponized against the queer community (para 42-53).
In Joseph Shine, on decriminalizing adultery, he explicitly pointed out the patriarchal stereotypes undergirding the provision and struck it down for violating women’s right to equality. Even though the provision only criminalized men involved in adultery, Justice Chandrachud read the history of the provision, and the context in which it was created to note that the supposed immunity enjoyed by married women from prosecution of adultery cases, only existed because of the stereotypical notion of chastity, and a belief that a woman became the property of her husband upon marriage, which constrained the sexual agency of married women (para 40-para 67).
In the Sabarimala judgment, he read Article 17’s prohibition against untouchability to include practices of exclusion of menstruating women, expanding the content of the right from covering instances of caste discrimination to include gender discrimination as well, noting the central role "pollution" plays in both forms of bigotry. In Lt. Col. Nitisha, he prescribed a framework for the assessment of indirect discrimination by importing a variant of the Fraser Test utilized by the Canadian Supreme Court, further building on the strides he took in Navtej Johar to solidify the place indirect discrimination occupies within Indian constitutional jurisprudence.
This is not an unqualified endorsement of these decisions, and they have all been critiqued for a variety of reasons; However, the point remains that in key landmark judgments, Justice Chandrachud extensively dealt with Article 15’s promise of ending gender-based discrimination. By employing Article 15 in cases like Navtej and Joseph and through his interpretation of Article 17 in Sabarimala, he ensured that the gender-discrimination lens was never forgotten or relegated to a second-tier position. This is in keeping with scholars like Martha Nussbaum’s prescriptions on reconciling equality with seemingly competing rights like privacy, and led to the hope that as the Chief Justice, he would be able to further reshape India’s discrimination jurisprudence into a strong weapon that women and sexual minorities could wield against the state. However, a case just prior to his elevation should have been a warning sign of what was to come.
The Dodge and the Drought
(Note: In this section I have used the term "women" because all the laws dealing with abortion talk about women, however, I note that non-cis women can also get pregnant and require abortions.)
Closer to his elevation as the Chief Justice, even in cases that dealt with women’s rights, Justice Chandrachud began showing scant attention to the principle of non-discrimination. This is most clearly seen in X v Principal Secretary which dealt with the interpretation of Rule 3B of the Medical Termination of Pregnancy Rules on Abortion which extended the 20-week time limit for abortions to 24 weeks in certain circumstances. We shall focus on the fact that the Rules stated that a change in the marital status of a woman would be reason enough to extend the time limit for abortions. It was argued that this rule was violative of the rights of unmarried women, and that they should be able to access the extended 24-week time limit as well. Justice Chandrachud ultimately found the rules to be violative of the right to decisional autonomy of women if they excluded unmarried women, and reinterpreted Rule 3B to be inclusive of unmarried women as well.
The outcome was certainly a win for the abortion movement. In fact, Shraddha Chaudhury argues that it is an example of the court distinctively employing feminist legal methods. However, the judgment is very interesting for one key reason - the complete absence of Article 15. Although Justice Chandrachud did discuss the role of patriarchy in constraining women’s choices for accessing abortion (para 98, para 121), and the stereotypes surrounding ‘acceptable sex’ that leads to stigma for unmarried women who participate in sex (para 92), this was done in the context of the right to decisional autonomy (para 47), rather than the right to equality. Indeed, the only appearance of any constitutional references to equality by Justice Chandrachud is a lone reference to Article 14 in pursuance of his purposive reading of the MTP Rules, noting that the discrimination between married women and unmarried women in this instance was constitutionally unsustainable without further elaboration (para 121).
The lack of Article 15’s analysis was stark in this case. Gauri Pillai argues that a discrimination lens is necessary when viewing the issue of abortion as it highlights that abortion laws not only serve to harm the individual woman’s decisional autonomy, but that they aim to curb the subordination of women as a group as well. Recognition of this fact, she argues, is useful in short-circuiting the foetus’ right-to-life argument. In choosing to regulate abortions strictly, as opposed to preventing unwanted pregnancies through better sex education, availability of contraceptives etc., the state uses women’s bodies to protect the foetus’ life.
This dovetails nicely with Surabhi Singh’s critique of X v Principal Secretary, that the court does not question the government’s justifications and explanations of the objectives and purposes of the MTP Act. Singh persuasively argues that the court ought not to have fallen for the government’s story that the MTP Act was made with a concern for women’s rights, and instead, should have used the wealth of academic material that conclusively showed that it was paternalistic family planning objectives that fueled the government’s abortion policy. One does wonder where the contextual analysis of legislative histories went missing - something that was so well done in Joseph Shine when it came to the criminalization of adultery, where Justice Chandrachud was not willing to simply buy the government justification that those provisions’ sole objective was the protection of the institution of marriage.
The promising flourish of judgments on equality from the late 2010s dried up once Justice Chandrachud ascended to the office of Chief Justice. Vandita Khanna looked for all the citations of Nitisha after the judgment till December 2023 and in the context of gender discrimination, there was only one use of the judgment - the same-sex marriage judgment. While it is possible that the cases in front of the judge were not gender-based discrimination cases requiring Nitisha, it is hard to ignore the fact that during his time as master of the roster - the head of the administrative side of the court with the power to decide to listen to cases - he disregarded cases which were important to women’s rights. For instance, petitions on the constitutionality of restitution of conjugal rights and the marital rape exception in criminal law were not given sufficient time for hearing.
It is especially important to take note of Gauri Pillai’s critique given that a year after this judgment, a three-judge bench of the Supreme Court in X v Union of India denied an abortion to a woman 26 weeks into pregnancy for being averse to stilling the heart of the foetus. The language of women’s rights was completely absent from the court’s judgment. The Chief Justice’s justification for rejecting the woman’s request for an abortion was the failure to comply with the MTP. Writing about Principal Secretary, Surabhi Singh noted that the court had taken the 20 and 24 week timelines at face value and not questioned their constitutional validity; This was echoed by Dipika Jain who, writing about the X v Union of India case, noted that “If it is deemed safe to end a pregnancy due to a fetal anomaly after 24 weeks, why can’t an unwanted pregnancy be terminated at 26 weeks, particularly when it affects the mental health of the pregnant person.” By not questioning the government’s claimed objectives on abortion and taking them as presumptively sound, Justice Chandrachud was ignoring a very important critique of abortion restriction laws - that they are by design aimed to punish women’s sexual agency. What was once tackled head-on in Joseph Shine in the context of adultery, was now being dodged in abortion, though it would turn out to be prophetic for his magnum opus on gender equality during his tenure as Chief Justice.
The Misfire of Institutional Incapacity
There is one case where Chief Justice Chandrachud did an extensive analysis of Article 15 and engaged with the issue of gender-based discrimination in detail; Yet it is the case that left the sourest taste in the mouth: Supriyo v Union of India. To recapitulate, the Special Marriage Act ('SMA') provides a secular alternative for couples to marry, however to date, the legislation has been read as only inclusive of heterosexual marriages. The plea of the petitioners was that such an exclusion was unconstitutional in nature for being violative of articles 14, 15, 19 and 21 of the Constitution. Another facet of the petition was that the Central Adoption Resource Agency’s ('CARA') regulations on adoptions effectively debarred same-sex couples from adopting children together and questioned the constitutionality of such an exclusion. Justice Chandrachud ultimately was with the majority opinion on the rejection of same-sex marriage and was in the minority in demanding the state to recognize civil unions and holding the CARA regulations as violative of the Constitution.
Justice Chandrachud rejected the demand for same-sex marriage in a curious manner, noting that marriage is not a static, but rather, a dynamic institution that the state has constantly moulded. He reiterated an important holding from Navtej that even though Article 15 did not use the words “sexual orientation,” the prohibition on discrimination based on sex would include prohibition on the basis of sexual orientation as well, and it would be irrelevant if orientation was an ascribed characteristic or an identity (Para 245-255). However, despite all this, he noted that the SMA had too many provisions that presume that marriage is a heterosexual institution, and linked it to inheritance statutes, that make assumptions regarding the heterosexual nature of the relationship. The court couldn’t interpret so many provisions of the statute, nor could it strike down the statutes completely due to the importance the SMA plays in the lives of inter-faith couples. Boxed into a corner, he chose to simply throw in the towel and observed that as the court could not provide any remedy due to its institutional limitations, and even if the SMA was found to be unconstitutional, he would refuse to decide the issue of constitutionality at all (para 208).
As I have argued elsewhere, the equality analysis of the SMA is nothing short of a complete abdication of the court’s position as the guardian of rights. Justice Chandrachud failed to use any of the doctrinal tests for equality. It is saddening that earlier, where others would not see any gender-discrimination issues, Justice Chandrachud would persevere to attempt to address them nonetheless (as was the case in Navtej and his interpretation of Article 17 in Sabarimala). Yet, as Chief Justice, he avoided gender discrimination analysis even when the case called for it!
The absurdity of his conclusion in Supriyo, that a systemically discriminatory piece of legislation would have a better chance at surviving constitutional scrutiny untouched, compared to a legislation which had only a single flawed provision, remained unaddressed. This inverts all existing jurisprudence on systemic discrimination (including his own) on its head. Ultimately, by taking this approach of avoidance, Justice Chandrachud privileged the inconvenience caused to heterosexual couples by the removal of the SMA (a statute which is rendered practically unusable by inter-faith couples due to its registration procedure) in contrast to the continuing violation of same-sex couples’ right to equality.
One could argue that he was boxed into a corner, wherein he did not wish to refashion large portions of the SMA and that this outcome was inevitable. However, firstly, as I have argued elsewhere, there were innovative solutions used by the SC earlier which were available to him through Article 142’s power to do complete justice. Secondly, by refusing to make a final adjudication, Chief Justice Chandrachud did not even provide same-sex couples with the dignity of acknowledging the violation of their constitutional rights. Instead, he invented a technique by which the court, when faced with a hard case wherein a statute is systemically discriminatory towards a gender and sexual minority, can simply wash its hands of the situation and maintain the rights-violative state of affairs, as they technically never put the final seal noting the rights violation.
As a consolation, Justice Chandrachud noted that the bundle of rights accompanying marriage (ability to name partner as nominee for various benefits, joint bank accounts, ability to visit in hospital ICU etc.) could not be denied to same-sex couples, and consequently read in the right to intimate association within Article 19(1)(c)’s freedom of association, along with Article 21, thereby ordering the government to recognize civil unions between same-sex couples. He further noted that though the right to union can be restricted by the government if it satisfies the proportionality test, if the restrictions (direct or indirect) are based on the sexual orientation of the couple involved, they would violate Article 15 (para 253-255). Justice Chandrachud then proceeded to speak of the positive obligations the state owes to the members of these couples to allow them to exercise their right to a union (para 282-287).
The brief mention of Article 15 is appreciated, compared to its complete absence in cases like X v Principal Secretary; Nonetheless, it does feel like a missed opportunity to shore up the jurisprudence on non-discrimination. Aparna Chandra has noted the hesitance of the court to prescribe positive obligations on the state in situations of group subordination. This could have been the moment for that to occur. Alas, Justice Chandrachud linked these positive obligations with freedoms under Article 19 instead of attempting to link them with Article 15.
The most detailed analysis of Article 15 was saved for the CARA Adoption Regulations which, in effect, blocked same-sex couples from adopting children together. Justice Chandrachud clearly explained the way the seemingly neutral adoption regulations, by only allowing married couples to adopt together indirectly discriminated against queer couples as they cannot marry (para 309). He noted that whilst Article 14 allows the state to provide a rationale for differential treatment, once discrimination has been established as prejudicially affecting a listed identity in Article 15, the state can give no justification for the classification (para 312). Thus, he proceeded to strike down the Adoption Regulations as violative of Article 15 of the constitution and read in words which would allow same-sex couples to adopt together.
Justice Chandrachud in this section of the judgment reiterated the important principles highlighted in Navtej on indirect discrimination, whilst at the same time making a clear distinction between Articles 14 and 15. It is precisely for this difference that it is a shame that he did not resort to Article 15’s analysis anywhere in X v Principal Secretary, and dodged conducting Article 15’s analysis on the question of same-sex marriage, making it even more glaring and indefensible.
In some ways, X v Principal Secretary was a clear prelude to Supriyo. When deciding both cases became inconvenient due to the implications that would follow, an Article 15 analysis was eschewed. However, it is more sophisticated than merely ignoring equality; Rather, it is the inclusion of equality within the fold of a proportionality analysis of decisional autonomy, without any reckoning for what the implication of that would mean. As stated by Justice Chandrachud, Article 15 does not allow for any justification, and so should be preferred to the structured proportionality analysis wherein the government is constantly given an opportunity to justify its actions. Justice Chandrachud’s opinions in the late 2019s were setting him to go down a path of radically reshaping India’s equality code for women, however, he never went down the lane it took him and instead chose to ignore it even existed when it was inconvenient for him to do so.
Perhaps his most important contribution to gender equality jurisprudence is the handbook on combatting gender stereotypes, which was published by the Supreme Court during his tenure. The handbook is aimed at judges, informing them to avoid outdated, misogynistic language and the usage of harmful stereotypes about women complainants, particularly in the realm of sexual violence. While the handbook describes Justice Chandrachud’s tenure on gender equality as though it has the lofty goal of sensitizing the legal community to harmful stereotypes of women, it is undercut by the fact that many of these stereotypes have never been overruled by the Supreme Court and continue to be good law.
It is striking that the one time he attempted to reshape gender equality jurisprudence of the Supreme Court, it was through a non-binding, advisory handbook.
Conclusion
Perhaps those who believed that Justice Chandrachud was going to usher in a new constitution with regard to the equality code were destined to be as wrong as the Tongawalla in Manto’s story, "The New Constitution." In having that belief, we chose to look away from those moments which showed that Justice Chandrachud was not interested in ripping up the status quo, rather, ensuring that his place in it was secure. The Ayodhya judgment, and the master of the roster orders, among others, were definitive signs that Justice Chandrachud was not the transformative individual for the office of Chief Justice that others hoped he would be.
In hindsight, the story of the non-usage of Article 15 during his tenure is unsurprising, for it is the provision that demands that the status quo be reshaped; that the norms become the normative(s). Instead, we had two years of ducking and dodging as the court threw aside its strongest weapon in exchange for a white flag of institutional incapacity.
*Harikartik Ramesh is an Assistant Lecturer at Jindal Global Law School (JGLS), and a Research Associate at the Centre for Justice, Law and Society (CJLS).
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