The arduous journey marred by unprecedented controversies of Justice Dipak Misra as the 45th Chief Justice of India (CJI) has finally come to end. His tenure as the CJI has its fair share of departures from established conventions. At the same time, his role as the Master of Roster needs to be equally questioned. His confused approach on free speech must be called out. He equally deserves appreciation for abiding by the convention of the seniority in recommending name of his successor.
In this piece, I would examine his role both as the (just retired) Chief Justice of India being the head of the institution, and the CJI as the first amongst the equals — nothing more and nothing less.
Role as administrative head of the institution
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Transparency in Collegium
The institution of the Collegium has been beyond public scrutiny. Secrecy had been the norm. One did not know who was being recommended and when by the Supreme Court’s Collegium. Nothing official used to be made available until Collegium headed by CJI Dipak Misra decided on October 3, 2017 to make public by uploading on the Supreme Court website the resolution of the Collegium recommending names of candidates for elevation to the High Court and the Supreme Court and transfer of judges to one High Court to another. It took more than 20 years for the Collegium (it came into existence in 1993) to understand that the people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries — exactly what the very same Supreeme Court held in State of U.P. vs. Raj Narain. Opaqueness of the Collegium’s proceedings have always been under criticism from different quarters, including the then sitting judge and Collegium member Justice J Chelameswar; however, no predecessors of Justice Dipak Misra could pay heed to any such criticism. They did not give two hoots about transparency and people’s right to know. It was only CJI Dipak Misra who rose to the occasion and decided to publish resolutions of the Collegium.
It must be mentioned here that Justices Madan B Lokur and Kurien Joseph had written to the CJI within two months of the aforementioned resolutions, saying that the names of those candidates who were rejected by the Collegium should not be made public, in order to shield from from any untoward bias and unnecessary ignominy towards them. This could be interpreted as an attempt to scuttle the seeds of transparency in the decision-making processes of the Collegium.
2. Misra’s role as the Master of Roster
The role of CJI Misra as the master of roster has been a matter of controversy that marred his tenure and raised doubt about his credibility and independence. In asserting his power as the master of roster, he breached all norms of propriety, not once but multiple times. To begin with, he hurriedly constituted a bench of five judges headed by himself to annul an order passed by a two-judge bench presided over by Justice Chelamaswear directing listing of a case before five senior most judges. In that case, allegations directly pertained to the CJI Dipak Misra against his alleged role in the medical college bribery case. There cannot be any justification for such a tearing hurry to constitute a bench to annul the order passed by another bench. It was both against the procedural norm and propriety since the allegations were against the CJI himself.
2G spectrum case that is pending on the files of the Supreme Court since 2010, came up before Justice Chelamswear on November 1, 2017 and was to come up again on November 6, 2017 before him. However, it was deleted and upon mentioning, it was ordered for listing before the “appropriate bench as per roster”. The matter was thereafter listed before the CJI court on November 13, 2017 and upon recusal by Justices A M Khanwilkar and D Y Chandrachud, the matter was placed before a bench other than a bench presided over by Justice Chelameswar on November 17, 2017.
The NGO Common Cause had challenged the appointment of Rakesh Asthana as the Special Director, CBI. This case came up for admission before a bench consisting of Justices Ranjan Gogoi and Navin Sinha on November 13, 2017 when Justice Navin Sinha recued himself from the case and hence the matter was directed to be listed on November 17, 2017 before a bench in which Justice Navin Sinha was not a member. Justice Navin Sinha was not sitting with Justice Gogoi on November 17, 2017, and therefore, as per the standard procedure, the matter ought to have been listed before Justice Gogoi. However, it got listed before a bench presided over by Justice R K Agarwal, who upheld the appointment of Asthana. Later on, Justice Agarwal was appointed as chairperson National Consumer Disputes Redressal Commission (NCDRC) after his retirement in April 2018.
3.Exclusion of Justices Chelameswar and Bobde from the Aadhaar bench
Justices J Chelameswar, S A Bobde and C Nagappan were hearing the Aadhaar case for quite a long time. They were the ones who made reference to larger bench on August 11, 2015 on the issue of “right to privacy” as a fundamental right. Justice C Nagappan retired in due course. The then CJI J S Khehar inducted both Justice Chelameswar and Bobde in a nine-judge bench constituted to answer that reference made by the five-judge constitution bench on the issue of right to privacy as fundamental right that was pivotal to decide the validity of Aadhaar on merits. Matter came up before the five-judge bench in view of the reference as refereed above made by a bench presided by Justice Chelameswar.
Finally, a nine-judge bench held right to privacy to be a fundamental right. Matter was ordered to be listed to decide on the merits. By that time, Justice Dipak Misra had become the CJI.
Hearing on the validity of Aadhaar commenced from January 17, 2018 and both Justice Chelameswar and Bobde were excluded from the bench which was not in tune with the practice followed in the Supreme Court. As a matter of practice, judges who hear the case from the beginning are given assignment to decide the case, or if the bench is of five-judges then in that case, those original judges are inducted. That has been a norm in the Supreme Court and followed by the CJI. However, CJI Misra breached this norm too in the garb of his power of master of roster.
Pertinently, the letter released by four seniormost judges said: “In the matter of determination of the roster, there are well-setlled and time honoured conventions guiding the Chief Justice, be the convention dealing with the strength of the bench which is required to deal with of particular case of the composition thereof.”
4. Withdrawal of a case from the bench
A bench constituted of Justices A K Goel and U U Lalit on the plea of advocate R P Luthra issued notice to the Attorney General on the issue that Memorandum of Procedure (MoP) must provide for mechanism so that appointments of regular Chief Justices of the High Courts are not unduly delayed. Court noted that there should not be further delay in finalisation of MoP in larger public interest. Even though no time limit was fixed by this Court for finalisation of the MoP, the issue couldn’t just linger on for an indefinite period. Case was directed to be listed on November 14, 2017.
However, in an unprecedented move, the CJI withdrew that case from the bench of Justice A K Goel. Hearing was preponed to November 8, 2017. Three-judge bench comprising of CJI, Justices A K Sikri and Amitava Roy recalled the order dated October 27, 2017 passed by the bench of Justice Goel. CJI Misra recorded that in view of Constitution Bench judgment in the NJAC case, there was no need to proceed with the case by the two-judge bench.
It was procedurally wrong for the CJI to withdraw a case from another bench and to sit over it, let alone dismiss it. Judges of the Supreme Court including CJI are equal on judicial side. The Chief Justice is only the first amongst the equals — nothing more or nothing less.
5. As head of the Collegium
During his tenure, it has been seen that the Executive has been arm-twisting the recommendations of the Collegium and sitting over them for quite a long time. This is an important area where the Collegium headed by CJI Dipak Misra failed miserably. Moreover, he could not take a strong position when Executive segregated the name of Justice K M Joseph and unilaterally appointed Justice Indu Malhotra to the Supreme Court. He also delayed in reiterating the name Justice K M Joseph that led to loss of seniority of Justice Joseph.
Memorandum of Procedure (MoP) is also in tatters. Nobody knows about its present status except that it has not been finalised and government is vetoing some of the key aspects of it.
Now coming to some praiseworthy initiatives undertaken by the 45th CJI Dipak Misra. He permitted journalists to bring mobile phones inside the court room. This has connected the courtroom with social media where readers desperately look for news coming from the court rooms. This was indeed a good gesture on his part.
CJI Misra as first amongst equals (his judicial role)
Before proceeding on the role of the 45th CJI Dipak Misra as a presiding judge in the Chief Justice’s Court, it must be borne in mind that four senior-most judges who accused him for assigning cases to “benches of preference”, nowhere questioned any of his judicial orders. Thus, what was under a cloud of suspicion was his role as the Master of Roster by virtue of being in the office of CJI, not that he himself was passing judicial orders inviting suspicion. It is another matter that assignment of cases to “bench of preference” ensures a particular outcome by shooting from the shoulders of others. In that case, the judge who obliges the Master of Roster is equally to be treated with suspicion, and there is no reason to spare him/her from public spirited criticism in the interest of greater judicial accountability.
CJI Misra in his tenure as the CJI that lasted over an year dealt with a variety of cases ranging from women’s rights, human rights, to the right of an author to freely express himself/herself.
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Confusing approach to free speech
On the issue of free speech which is at the heart of any democratic country, the approach of Justice Misra has been a confusing one, without much consistency. For instance, he upheld the constitutional validity of the criminal defamation in Subramaniam Swamy v. Union of India. The real issue that is the chilling effect criminal defamation has on free speech does not find mention in his judgment. In another case, Devidas Ramachandra Tuljapurkar vs State of Maharashtra, he carved out another ground in Article 19(2) to restrict the free speech. He introduced the “historically respectable figures” doctrine from the fermentation of his own imagination. He invoked “contemporary community standards test” when it came to cases of obscenity qua historically respectable figures. His infamous order of commanding cinema owners to play national anthem is well known. Of course, it was later modified when some good sense prevailed.
In contrast to his earlier approach on free speech when he was a judge, not the CJI, there came a significant change in his approach on free speech when he assumed the Chief Justice’s office. From giving go-ahead to the release of the film Padmaavat, and refusing to ban a Maliyalam novel Meesha which according to the petitioner was insulting and derogatory to temple-going women and it hurt the sentiments of a particular faith/community — CJI Misra threw his weight behind freedom of speech and expression with gusto. This is another issue whether the writ court should be entertaining at all kinds of petitions seeking bans on books, novels and other works of art.
2.On the issue of women’s rights
His approach on the issue of women’s rights has been consistent, firm and laudable enough. In Shafin Jahan v. Asokan K M (Hadiya case), CJI Dipak Misra held that choice in accordance with law is acceptance of individual identity. It may be noted that his predecessor, Justice J S Khehar instead of setting Hadiya at liberty, had ordered probe by the National Investigation Agency (NIA) into the marital status.
Recently, in Joseph Shine v. Union of India (Adultery case), while declaring section Section 497 of the IPC as unconstitutional, CJI Dipak Misra noted that “husband is not a master of his wife”. Much recently in Sabrimala case, he struck down the rule that restricted entry of women between the age of 10 to 50 years and held it to be a clear violation of the right of such women to practise their religious belief which, in consequence, makes their fundamental right under Article 25(1) a dead letter.
CJI Misra took serious note of the humiliation and physical assault meted out to one lady lawyer Afshan Pracha by certain members of the Bar at Tis Hazari Court. He ordered police protection to the lady lawyer and requested the Chief Justices of all the High Courts to constitute committees against sexual harassment at workplace in light of the Supreme Court’s decision in Vishaka & Ors. v. State of Rajasthan & Ors. Going one step further, he listed the case for compliance to see whether the committees against sexual harassment were constituted or not.
In a landmark judgment in Shakti Vahaini case, a bench presided over by CJI Dipak Misra declared that any assembly (Khap) that attempts to scuttle the marriage between two consenting adults would be illegal. He issued a slew of directions to prevent couples who undergo inter-caste and inter-faith marriages.
3. Judge with a passion for marginalised
The gravity with which he took up the matter of mob lynching is commendable. His commitment to prevent the incidences of mob lynching and to provide relief to the victims is praiseworthy. In Tehseen Poonawalla case, he issued slew of directions, of both preventive and remedial in nature, to prevent incidences of mob lynching. He also ordered framing of the victim compensation scheme, and to fast-track the trial in such cases. In addition, he strongly recommended to Parliament to enact a separate law to deal with the crime of mob lynching. As a result, the Government of India constituted a committee headed by the Home Secretary to deliberate upon and to recommend to the Group of Ministers (GoM) headed by the Home Minister, who in turn would send the recommendation to the Prime Minister for measures required to deal with the cases of mob violence and lynching. Till the end of his tenure as CJI, he heard the case and sought reports to ensure all states and UTs comply with the judgment on the issue.
In Kathua case, he transferred the trial out of the State of Jammu and Kashmir so that a fair trial be conducted into the gang rape and murder of an eight-year-old girl.
Much recently, he took up the case of validity of Section 377 of the IPC in Navtej Singh Johar v. Union of India, that criminalised “sex against the order of nature” and discriminated against the LGBTQI peoples. Finally, he held Section 377 IPC, so long as it criminalises consensual sexual acts of whatever nature between competent adults, as manifestly arbitrary. He noted in his judgment: “The LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights.”
“Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice….”, said CJI while decriminalising section 377 of the IPC.
However, in contrast to what he said in Navtej Singh Johar case, in Aadhaar case, he signed off a judgment that upheld the validity of the Aadhaar Act, a legislation that in fact is the anti-thesis of the very autonomy of an individual that CJI Misra upheld in the judgment reading down Section 377.
At the same time, it must be pointed out here that while taking up this matter of challenge to the validity of Section 377 of the IPC under a writ jurisdiction, the CJI Misra again committed procedural error since a curative in Naz Foundation case was already pending for consideration against the decision of the Supreme Court restoring decriminalisation that struck off from Section 377 by the Delhi High Court in 2009. By taking up this case under writ jurisdiction, he made the curative petition redundant. Only a formal order is required to this effect.
4. Institutional reform through a judicial order
His decision in the case of Indira Jaising v. Secretary General, Supreme Court of India and others, accepting the petition for the live-streaming of the Court proceedings is something very extraordinary coming from the Supreme Court, that has been conservative on the issue of transparency and accountability. It will pave the way for more transparency and accountability in the functioning of the court. This decision also strengthens the peoples’ right to know which is a facet of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
It is a second big institutional reform after laying down transparent and objective criteria for the designation of the senior advocates throughout the High Courts and Supreme Court by a bench constituted of Justices Ranjan Gogoi and R F Nariman.
5. Failing the litmus test
Apart from his controversial role as the master of roster, and despite having quite a few progressive judgments to his credit, he has failed the litmus test. He could not take on the high and mighty of the Government. In Judge Loya case, a bench presided over by him dismissed a batch of petitions seeking probe into the mysterious death of Judge B H Loya who was trying the Sohrabuddin Sheikh encounter case, in which the BJP national president Amit Shah was directly accused. The judgment dismissing the clutch of petitions was authored by Justice D Y Chandrachud, and the CJI had signed on it. This will remain a blot on the otherwise formidable jurisprudential achievements of even Justice Chandrachud, and certainly one of the lowest points of the Supreme Court steered by the 45th CJI Dipak Misra.
In yet another case recently, he refused to order probe by Special Investigation Team (SIT) into the arbitrary arrest of the human rights activists in connection of Bhima Koregaon event organised by Elgar Parishad. The civil liberty of an individual was at the very heart of this case, in which the majority judgment was authored by Justice A M Khanwilkar, and was signed off by CJI Misra. The “dissenting opinion” of Justice Chandrachud is exactly what the majority opinion should have been, but alas, was not, thereby dealing a huge blow to civil liberties of citizens.
6. Rising to the occasion
If the four senior-most judges — that included the newly inducted Chief Justice of India, Ranjan Gogoi — could be said to have risen to the occasion alerting the nation that “democracy was in danger” on account of assignment of cases to the “bench of preferences”, hinting at the interference of the Executive in the functioning of the Judiciary and putting CJI Misra in the dock, there is no reason why credit shouldn’t go to CJI Dipak Misra for recommending Justice Gogoi as his successor, notwithstanding the treatment meted out to CJI on his part. CJI Misra was under no compulsion to recommend name of Justice Gogoi for the appointment as CJI, nor he was bound to respond to the letter of Law Minister seeking his nomination for his successor. However, he rose to the occasion in the larger interest of the institution brushing aside all the grudges because he knew his not recommending Justice Gogoi would cause irreparable damage to the institution of the judiciary as it could have given a free hand to the Executive to meddle in the appointment of the next CJI and the nation could have witnessed a third supersession.
CJI Misra’s contribution to gender justice cannot be overstated. His sincerity in granting urgent hearings in cases of torture, violence against women and lynch-mob incidences has been par excellence. He was a humane judge, with great tolerance who never resorted to contempt jurisdiction despite all kinds of insinuations, allegations, and barrage of criticism traded against him. He has an eminently unforgettable term on which history will shine a kind light with the healing distance of time.
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