October 2 is an auspicious date, not because the sitting Chief Justice of India, Dipak Misra, has retired, but because it is Gandhi Jayanti, and traditionally in this country, it is a date on which several government concessions are announced to mark the birth anniversary of Mohandas Karamchand Gandhi, the foremost among the founding fathers and mothers of our independent nation. This year, the event will be marked by the retirement of a controversial Chief Justice, whose birthday also happens to be today.
He is perhaps the first Chief Justice of India in recorded history who has had to face a proposed motion for removal under Article 124 of the Constitution of India; it is a different matter that the Vice President of India, Venkaiah Naidu, in an order which was patently illegal sat in judgment over the merits of the allegation and refused to admit the motion. It is also a different matter that a petition filed by a few Members of Parliament — Partap Singh Bajwa and Amee Harshadray Yajnik — questioning the Vice President’s order dated April 23, 2018 was withdrawn, putting a closure to the removal debate.
Judge Loya case
Many have criticised the withdrawal of the petition with no outcome and no plan B in place. The timing of the motion has also been criticised on the ground that it came only after the Judge Loya decision, although the controversy had been hanging in fire for quite some time. There is merit in these points of view. There is no explanation to the question why the motion was not fielded earlier and although I do not personally believe that the timing has anything to do with the Loya judgement, there is no denying that that is how it was perceived in the public domain.
Meanwhile, Kapil Sibal who led the charge stopped appearing before Chief Justice Dipak Misra and that must be appreciated. In fairness, having accused the CJI of corruption, it would seem wrong to have continued to appear.
For me, by far the most important and serious allegation was to be found in the letter of October 2017 addressed by four sitting judges of the Supreme Court to the CJI, the letter which was released to the public at the historic and unprecedented press conference dated January 12, 2018 at the residence of Justice Jasti Chelameswar, now retired. The four senior-most judges of the Supreme Court levelled the allegation that the “cases having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this Court selectively to the ‘benches of their preference’ without any rational basis for such assignment”. The press conference came on the day the Loya petition was listed for hearing before a bench presided over by Justices Arun Misra and M Shantanagoudar.
On that unforgettable day, January 12, 2018 — I was present in court and appeared on behalf of the Bombay Lawyers Association on instructions from them and mentioned that the case was pending in the High Court of Bombay and therefore, the Supreme Court ought not to entertain the petition. In the Loya case, the petitioners were Tehseen Poonawalla, and curiously enough, one Bandhuraj Sambhaji Lone, a one-time journalist whose association with the BJP’s Mumbai unit and Amit Shah has been already reported. Predictably, as in the hearing also, his counsel conceded that after having seen the documents, he was satisfied that there was no need for investigation. A more classic case of a petition intended to be rejected cannot be found in recent history. It is a tragedy that judges are not able to reject such mala fide petitions at the outset and ironic that in that very judgment, they say that mala fides disqualify a petitioner in PIL.
It has now become obvious beyond a shred of doubt that public interest litigations are often filed to obtain a rejection and to give what has come to be known as a “clean chit” to politicians. Politicians look at the Supreme Court as a laundry service into which they throw their dirty linen that comes out suitably clean, swachh. That is what a “clean chit” means.
Though this isn’t the time and place for a detailed critique of the Loya judgment, but I have to say that in my opinion, this judgment will be comparable to the Union Carbide Corporation decision of the Supreme Court putting an end to criminal and civil proceedings in the 1984 Bhopal Gas disaster by a so-called “settlement.” The Loya case, too, was buried alive in court, and perhaps as the UCC settlement was reopened, this too will be when it’s time.
[I will also remain disappointed by the judgment delivered in the Loya case because Justice Dhananjaya Yashwant Chandrachud — whom I have myself called, publicly and openly, the “liberal” and the “dissenting voice” of the Supreme Court because of his brilliant (and often minority) opinions in Aadhaar, Bhima Koregaon, Sabarimala, 377 matters, as well as in the Right to Privacy judgment last year, among others — was a party to it. I will continue to be disappointed for a long time to come, and be extremely perplexed over the possible reasons behind an otherwise principled judge writing a judgement that buried justice alive. The question will haunt me for a long time. The answer will come one day I am sure. I would have thought that such an investigation, as was sorely required into the inexplicable circumstances surrounding the death of Judge BH Loya, would have instilled confidence in the legal system and gone a long way in assuring the nation that judges in this country were safe. Till date, I’d like to believe I was not wrong in my principled pursuit of justice.]
‘Benches of preference’
Back to the January 12 press conference. In answer to a pointed question, whether the press conference was held on January 12, 2018 in light of the listing of the Loya case, Justice Ranjan Gogoi — the incoming Chief Justice — not only nodded his head but spoke in the affirmative. If ever there were a case for impeachment, it was this allegation rather than the allegation of corruption in the matter of judicial orders. It is possible to argue that there was insufficient evidence against the CJI on the issue of corruption, namely money passing hands for giving judicial orders, but, the case against him for assigning matters to “benches of preference” was strong. In the absence of a pre-determined roster, the power to assign cases to particular benches can make the difference between a positive and a negative outcome. This suspicion is strengthened by the fact that former chief justices have also assigned cases of a sensitive nature to benches of preference; for example, the Sahara diaries case, which implicated a sitting PM and the Kalikho Phul suicide case, which implicated two sitting judges of the court, a case which came to be withdrawn on the ground that it was filed on the administrative side and not on the judicial side.
But it is worth mentioning that the authors of the October letter neither clarified in that letter, or at any time thereafter, that cases indeed were assigned to benches of preference. In my opinion, the incoming Chief Justice of India, Justice Gogoi, who was a signatory to the October letter, also owed/owes the nation an explanation on what was meant by “benches of preference,” and which were the cases the authors of the letter had in mind. When such serious allegations are made, speculation is not an option. It is that aspect of the allegation which calls for an enquiry even today.
The manner in which the controversy related to the assignment of cases was subsequently resolved — that the CJI is the Master of Roster — compounded the initial allegation. A decision from the very court, that is of the Chief Justice who is alleged to have made the controversial assignments, led to allegations of bias, even though the law declared, namely that the Chief Justice of India is the master of the roster, may be correct. A veritable mob of lawyers led by the then President of the Supreme Court Bar Association, Rupinder Suri, was present in court and virtually prevented Advocate Prashant Bhushan from arguing his case. The Chief Justice of India did nothing to stop the marauding mob of unruly lawyers assaulting a fellow lawyer. A more blatant subversion of the rule of law cannot be imagined, that too inside the CJI’s court. Enough has been said about the shortcomings of such a system in determining the roster, particularly by Justice A P Shah (in his 2018 BG Verghese Memorial Lecture).
Since then, an apology for the roster has been issued with overlapping domains leaving us to guess which particular petition will fall under which domain: for example, whether under PIL, or under social justice. All that is now history and need not be reiterated in greater detail. Regrettably, we saw eminent jurist Fali Nariman say to us to “Lump it” — an attitude adopted by many of his generation which has brought the system to where it is today, at a new low. What example are they setting for a younger generation of lawyers?
Administrative role: below the mark
But is that the sum and substance of the legacy of the outgoing CJI of India? Here one has to separate the evaluation of his administrative role and his judicial role. On the administrative side, the outgoing CJI left much to be desired as recounted above.
A judgment of the court delivered on the manner in which Senior Advocates to be designated (2017 (9) SCC 766) was not enforced by him, leaving many lawyers frustrated. There is no explanation for this unconscionable delay. The formation of constitution benches remained a mystery. Senior judges of the court were never seen on the constitution bench, something that one would expect and look forward to. There was a mystery about the very timing of the constitution benches. While some issues went into cold storage, others were fast-tracked. One example of this was the challenge to Section 377 of IPC, ignoring a curative petition filed in the Koushal case and leaving it pending; the matter was straightaway referred on fresh Article 32 petitions to a constitution bench, out of turn. While we all welcome the outcome, one cannot forget that the procedure adopted was contrary to established norms. Why was the curative petition challenging Koushal not disposed off and dealt with, or even placed on board for hearing along with the Article 32 petitions? We have no answers.
A petition challenging FGM was referred to a constitutional bench after a good 10 hours of hearing on merits, simply because the Attorney General of India changed his mind and suggested a reference to constitution bench having opposed it earlier, with no explanation forthcoming. A request made by me to await the outcome of the judgement in Sabarimala, which would have had an obvious bearing on the decision of FGM, was ignored. There is no explanation for the colossal waste of judicial time in placing matters before the constitutional bench. Arguments continue well into the period approaching retirement, leaving little or no time for judgment writing in a systematic manner. Arguments advanced in successive constitution benches prove to be similar, once again leading to an unnecessary loss of time.
Judicial role: Many highs, quite a few lows
On the judicial side, the outgoing Chief Justice did author some judgments which furthered the democratic content of our constitution. There can be no doubt that the judgment in Government Of National Capital Territory Delhi (GNCTD) v. Union of India (C.A. 2357/2018) matter has a significance beyond the case at hand. It was a clear signal to the Central Government that the Constitution of India is federal in nature and that the Centre cannot play big brother. The judgment must be viewed as conversation between the two co-equal institutions of state — namely the Supreme Court of India and the Central Government. It is the Court informing the Centre about the limits of its powers of oversight in relation to all States within the Union of India and in particular in relation to the Union Territory of Delhi.
CJI Misra’s quick and prompt understanding of the issue of lynching of victimised minorities also showed an astute grasp of the federal division of power, holding States responsible, while at the same time pinning the responsibilities on the Centre to ensure that the States perform their constitutional function and that lynching does not result in the breakdown of constitutional machinery. His insistence on the centrality of the individual in the Hadiya case [Shafin Jahan v. Asokan] where he emphasised on a woman’s right to make decisions and choices of a life partner will hopefully protect couples in inter-caste and inter-faith marriages.
The outgoing Chief Justice has maintained a consistent commitment to “constitutional morality’ from Manoj Narula to Navtej Johar. In GNCTD, he makes it clear that constitutional morality binds the Central Government in its dealings with States, the principle is not confined to the private realm alone but extends to governance. He carried this analysis forward in Sabarimala and insists that constitutional morality must inform our religious practices and they cannot be allowed to trump equality for women. His understanding goes so far as to recognise that our relationship with our maker cannot be mediated by middlemen: it is a one-to-one relationship which we each form for ourselves.
One one occasion, while I was discussing the right to freedom of religion and freedom of conscience before the constitution bench, I made a point that only human beings had conscience, not institutions, and therefore inanimate objects couldn’t have conscience either, my opponent in court made a statement that he believed in vegetarianism. The response from the CJI was that he was a vegetarian, but it was not a “belief”, but because he considered animals to be his friends. This compassion for animals was reflected in his judgements banning the use of elephants in temples to perform labour and banning the culling of dogs in Kerala. I find his compassion for animals almost Buddhist in its largeness of heart.
However, on occasions, “mercy” went missing. The case seeking stay on the execution of 1993 Bombay blasts convict Yakub Memon was denied at 5:30 am on July 30, 2015, but was seen as an example of the Supreme Court burning the midnight oil in order to deliver justice. Far from it, I saw it as an attempt by the Bench to meet the execution deadline of 7 am, which was predetermined by the Central Government. Is justice done under the shadow of the hangman’s noose justice at all? Should that execution not have been stayed and matter of life and death be heard with a “posture of calmness”, to borrow a phrase from Justice Sikri, rather than under the shadow of the executioner? After all, the petition was all about asking for time to make peace with your maker, 14 days as the court had held after the rejection of the mercy petition. Yakub Memon was denied those fourteen days.
Similarly, the last of the judgments he signed on — it was written by Justice AM Khanwilkar —in what has come to be known as the Bhima Koregaon case, will remain a matter of regret. CJI Misra, along with Justice Khanwilkar, failed to understand that human rights are indivisible; you cannot have a commitment to gender justice without having an equal commitment to the right to freedom of speech and civil liberties. It is amazing that such eminent judges, and he was certainly one, can live their lives in jurisprudential silos. One day this mystery must be resolved.
What is now clear is that we have both liberal judges and conservative judges in the court. We also have judges with known links to the RSS, the ABVP, and the BJP. We have judges who accept post retirement benefits and those who don’t accept them. Perhaps, the time has truly come for us to change our system of appointment of judges through a parliamentary process where they can be questioned on their antecedents — like they have it in the United States. Have the judges of the Supreme Court of India been watching the Brett Kavanaugh-Christine Blasey Ford hearings, that was live-streamed all across the world? We at the very least have a right to know who are the women and men who govern us in matters of liberty and faith. We at least have the right to know if our proposed judges have a history of sexual harassment, and some of them do. We at least have a right to know whether they would succumb to the lure of post retirement jobs. And we need a functioning system of investigation into acts of misconduct by sitting judges, something we don’t have till date.
Relationship with the Bar
CJI’s Misra’s interaction with the members of the Bar was always extremely cordial. I have not known of a single lawyer, big or small, who left his court with a feeling that he was not heard. Justice Dipak Misra had the rare ability of making everyone feel that they were in a win-win situation. A judge apart from interpreting the law is also expected to be a statesperson; and one of the hallmark of statesmanship is to convince all the stakeholders that they have something to gain from the proposed decision. Justice Dipak Misra did have that wonderful quality.
Speaking for myself, I can confirm that although, I have openly and publicly taken a stand against his administrative decisions, of which he would be no doubt aware, I have never once felt discriminated while appearing before him in court. This, too, was one of his rare abilities — that of keeping aside whatever view he may have of a lawyer in relation to her out-of-court work, and not letting it affect his decision in cases in which the lawyer appeared. This needs to be said on record since I have suffered that kind of discrimination at the hands of other judges who are unable to rise above their petty differences and unable to take well intentioned criticism of the system.
When all is said and done, and when I speak to my colleagues in the Delhi High Court, and in the Supreme Court, I find many lawyers including women lawyers who have a soft corner for Justice Dipak Misra. They say to me that he was always mindful of the social and economic needs of the vulnerable communities; a great quality indeed in a judge. As Justice Krishna Iyer often said, justice must be tempered with mercy and justice is very often an emotional issue and not just a legal issue.
The body of the mind
I also liked his ability to quote poetry, often lines from William Shakespeare, relevant to the occasion and the case at hand. In the 377 judgment, he begins the judgment with the following three quotes:
“Johann Wolfgang von Goethe, had said, ― I am what I am, so take me as I am…”
“…Arthur Schopenhauer had pronounced, ― No one can escape from their individuality.”
“Shakespeare through one of his characters in a play says ― What’s in a name? That which we call a rose by any other name would smell as sweet.”
One comment of his comes to mind. While dealing with my petition on live-streaming of judicial proceedings, in answer to an objection by a lawyer that there should be no live-streaming, CJI Misra responded saying, that very often when he has read poetry that appeals to him, he had wished that he could see the author recite that poem. Because, he said, there is a connection between the mind and the body which becomes obvious visually and in his opinion, he saw no reason why members of the general public should not watch a judge hearing a case. For me, the comment was profound. It links the body and the mind in a way that we often describe as an understanding of the body language. It was at once a legal and a non-legal issue, and it gave me an insight into why he ultimately agreed to live-streaming of cases of national significance.
This year will see the retirement of Justices Madan B Lokur and Kurien Joseph. This will leave only one of the four authors of the October letter in the Supreme Court, the incoming CJ of India, Justice Ranjan Gogoi. He, too, will owe the nation a lot. This is not the time to evaluate an incoming CJI. So I will say no more. But I cannot resist the temptation to recall his lecture delivered at an Indian Express event which he titled “My Vision of Justice”. For me, that was the time when I made the connection between the body and mind. I saw him deliver a lecture with great conviction in his voice. I will end by saying: Welcome to a “Noisy Judge”.
But for now, I will miss the outgoing Chief Justice of India who was presiding over court number 1 of the Supreme Court during the last 13 months. It’s a bitter-sweet feeling. And since every judge retires on his/her birthday, I wish the 45th Chief Justice of India, Dipak Misra, a very happy birthday.
[Editor’s note: Senior Advocate Indira Jaising appeared in a number of cases before 45th CJI Dipak Misra which have been discussed in this article, particularly in Loya, Sabarimala, GNCTD, Live-streaming, Hadiya, and many more. In addition, Lawyers Collective has been at the forefront of the legal battle against Section 377 seeking decriminalisation of consensual homosexual acts years, and Senior Advocate Anand Grover has argued before the Constitution Bench which read Section 377 down in its September 6, 2018 judgment. Grover also argued the Yakub Memon case during the post-midnight hearing.]