Dipak Misra is not just a name but a judicial legacy. As a former chief justice of India, the man earned much credit in his tenure of over 13 months at the Supreme Court even while being enveloped in controversies. Shakespeare’s words, “Love me or hate me, both are in my favor”, befit the paradoxical man in question. Battling through his volatile tenure, he emerged an unprecedented champion of civil rights, liberties, and equality with a host of liberal and progressive judgments given in the last few days before retirement, leaving behind an unshakable legacy. The question of how history will remember him is a complex one and stands open for debate. Lex Witness brings to you a journey through the hits and misses of the former CJI – undoubtedly an institution in himself for the rest of the judicial times to come.
Till he be remembered as a liberalprogressive judge for charting the country’s narrative on privacy, equality, and dignity or as the chief justice against whom charges of misallocation of cases, bribery was leveled? As the chief justice who did not shy himself from adjudicating cases of national importance or as the chief justice who maintained an odd silence while handling politically sensitive cases? As the chief justice that members of the bar loved or the chief justice against whom fellow senior judges publicly revolted in a press conference?
As the chief justice who preserved the independence of the judiciary or the chief justice who exposed the dark underbelly of the top judicial institution to the public? As the chief justice who played a big role in transforming Indian jurisprudence or as the chief justice who was criticized for delaying judicial appointments and went on to face an impeachment motion?
Born in October of 1953, son of Raghunath Misra and Chanchala Devi, Dipak Misra comes from a politically and legally charged family background. His father was with the Congress and went on to become a member of the Odisha Legislative Assembly. Tracing back further, his paternal uncle, Ranganath Misra practiced as an advocate in the Orissa high court and went on to serve as the Chief Justice of India in 1990. So, it was not unusual for Dipak Misra to have grown up around a buzzing legal family practice.
As a boy, Dipak was known to be timid and joining the legal practice was not his initial calling. He studied English literature and wanted to be a teacher. However, inspired by the legacy of Ranganath Misra, he later opted to study law at Madhusudan College in Cuttack. He was fortunate to have been exposed to a fully equipped law practice which he quickly took over and began his legacy at the Orissa high court, one that would go down in history as most illustrious.
Climbing the success ladder through the Orissa high court, Madhya Pradesh high court, Patna high court, and the Delhi high court, Dipak Misra was elevated to the Supreme Court in October of 2011 where he served as a judge until 28 August 2017 when he was appointed as the 45th Chief Justice of India. Misra as a sitting judge of the Supreme Court had already started making headlines for his contribution to noteworthy cases before taking over as the chief justice of India. He presided over the three-judge bench that sent Yakub Memom, convict in the 1993 Mumbai blasts case to the gallows by rejecting his appeal against death warrant. This was done in an unprecedented midnight hearing for which the Supreme Court was opened at 3 am. Another three-judge was headed by Misra which upheld the death sentence awarded to the four convicts in the Nirbhaya gangrape case. However, the case that put Misra on a national pedestal was his ruling on mandatory standing up for national anthem playing in theatres. The order gained significance because of the country’s evolving politics of the rightwing patriotism. It was criticized as it sought to impose a certain form of nationalism on people. Thirteen years before this ruling, during Misra’s tenure as a judge of the Madhya Pradesh high court, he had passed a detailed order on the importance of showing respect to the national anthem. Incidentally, he reversed his stand after becoming the CJI and held that it was not mandatory to play national anthem in theatres in January 2017.
On becoming the CJI, Dipak Misra handled his court with utmost courtesy. He was kind, patient and indulgent towards lawyers and making room for all kinds of causes. His love for poetry, literature could be seen as he would quote anecdotes off the cuff while hearing cases. In his judgments, he relied on literary works of philosophers, writer and poets such as Shakespeare, Pablo Neruda, P.B. Shelley, Alexander Pope, and T.S. Eliot while expressing his views on individual freedom and dignity.
Controversy followed the former chief justice from his early days as a lawyer, when his name was Deepak Mishra. In 1984, the Cuttack high court was vested with a where an Orissa high court lawyer was accused of fraudulently procuring three acres of government land under a scheme to uplift the economically backward class. The lawyer was erstwhile CJI, Dipak Misra who had filed a false affidavit to get the land and later changed his name to Dipak Misra.
In 2012, he allegedly prevented an Orissa High Court judge from becoming the Chief Justice of Punjab and Haryana High Court because it was this judge that had ordered a CBI inquiry to investigate the public servants who had been indicted of obtaining government land by fraudulent means – something that Justice Misra was guilty of.
In November 2017, two petitions were filed in the Supreme Court – one by Campaign for Judicial Accountability and Reforms (CJAR) and another by lawyer Kamini Jaiswal seeking an independent inquiry into allegations of judicial corruption based on findings of the CBI after its arrest of former Orissa High Court judge, Justice I.M. Qudussi and four others (including officers of the Prasad Education Trust) in September.
The CBI claimed involvement of Qudussi and others in trying to influence and bribe judges at various courts including the Supreme Court regarding the Lucknow based- Prasad Education Trust that had been blacklisted by the government from admitting students as its medical colleges. The blacklisted colleges were found to have sub-standard facilities and did not fulfil the required criteria. As the story unfolded, Justice Quddusi and Bhawana Pandey were steering the matter all along and had allegedly assured the Prasad Education Trust that they would be able to get the matter settled in the Supreme Court. At one point, Prasad Institute had withdrawn its challenge from the Supreme Court and moved the Allahabad high court which stayed the debarment order. The medical college regulator challenged the Allahabad High Court order in the Supreme Court which was followed by Prasad Institute also filing a writ petition in the Supreme Court.
Kamini Jaiswal’s case was initially heard by the court of former Justice J. Chelameswar on 9 November which found the allegations in the FIR to be disturbing and sought it fit to be heard by a five-judge constitution bench on 13 November. Since the allegations were against CJI Misra who had earlier heard the case against Prasad Trust, he sought that Misra is excluded from the proceedings.
The next day, on 10 November, the second petition by CJAR came up for hearing before a two-judge bench of Justices A.K. Sikri and Ashok Bhushan. The bench referred the petition to the CJI to pass appropriate orders even as Justice Sikri observed that “anybody and everybody, however high, had to be subject to the rule of law. The same day, former CJI Misra hurriedly constituted a five-judge constitution bench himself which assembled at 3 pm and effectively annulled the order passed by Justice Chelameswar’s court thereby openly declaring that he was the master of the roster and only he could decide on the constitution and composition of benches in the Supreme Court. Just like that, the internal turmoil between the two senior judges was out in the open and Misra emerged as dominant. Very soon, CJAR’s petition was dismissed by a bench headed by Misra himself.
Former CJI Misra said that there was no procedure in law to name the CJI in an FIR. “Rumours and unsubstantiated allegations cannot be used against judges; such practices will cripple the judiciary and are a threat to its existence”, he said.
Before dismissing the matter, the courtroom witnessed a heated exchange between Misra and lawyer Prashant Bhushan who said that it would only be right for him to rescue from the case. An angry Misra asked the lawyers to read part of the FIR where his name was mentioned and then said that this was worthy of contempt of court. The hearing concluded with Bhushan storming out of court and Misra maintaining his dominance over the constitution of benches in the Supreme Court.
By the end of 2017 and mid-2018, Misra was taking every opportunity to assert his superiority in the allocation of matters, by deciding the constitution of benches to different judges. He could pick and choose which case would be heard by which judge. After making it amply clear in the CJAR case, he continued reiterating the power of his exclusive discretion on the allocation of cases which earned him the title of the “master of the roster”. In the CJAR case, the court held that the chief justice was first among equals on the judicial side, but on the administrative side, he was the master of the roster. He also held that any order passed in contravention of this rule would stand annulled. This was only the beginning of his reign as king of the Supreme Court when it came to matters of allocation of cases as his troubles were about to get deeper.
While Misra continued with his ways through displays of unbridled powers over the allocation of cases, other judges started to grow disgruntled with his behaviour. As convention goes, the CJI is vested with powers to constitute benches and allocate cases but the selective manner in which Misra was doing this was starting to raise questions from fellow judges and others in the legal fraternity.
A particular case that plunged the growing hostility into public light was allotment of the case challenging death of Judge B.H. Loya who died under mysterious circumstances before the court of Justice Arun Mishra. This was not particularly spoken about except by lawyers in the court corridors until the morning of 12 January, when the four senior-most judges of the Supreme Court called a press conference to voice their concerns over affairs of the top court.
The press conference that would go down as historic saw incumbent CJI Ranjan Gogoi and Justices J. Chelameswar, Madan Lokur and Kurian Joseph expressing displeasure at the workings of the Supreme Court under the leadership of Misra. In a virtual revolt against this, the four senior judges said that democracy was at stake and that they did not see another way than going public with their concerns that had gone unaddressed by the former CJI.
Justice Chelameswar said that the administration of the Supreme Court was not in order and that the chief justice was not following established precedents in the allocation of cases among the judges. This, they argued, was adversely affecting the justice delivery system. In a scathing 7- page letter of protest that was submitted to Misra before the press conference, the senior judges pointed out how Misra was in circumvention of the “master of the roster” convention as he assigned important cases selectively to junior judges, keeping senior judges out of the purview of such important and sensitive matters. Interestingly, while the letter did not make a direct reference to the issue the controversial 2014 death of Judge B.H. Loya, who was presiding over the CBI court in the Sohrabuddin Sheikh encounter case, on being questioned whether their protests had anything to do with its allocation, Justice Gogoi said “yes”.
The issue of selective assigning of cases by Misra was a particular cause of concern to the senior judges and had not been responded to by Misra despite repeated attempts by them. “There have been instances where a case has far-reaching consequences for the nation and the institution have been assigned by the chief justice selectively to the benches ‘of their preference’ without any rational basis for such assignment. This must be guarded against at all costs,” the letter said.
Other criticism included the delay in finalizing the memorandum of procedure (MOP) on which detailed discussions were held by the collegium and submitted by the then chief justice to the government in March 2017. Because of delay in finalization of the MOP, judicial appointments were being stalled, it was claimed.
What broke out as an unscheduled press conference, launched the judiciary into a dark phase over public exposure of its internal affairs. Misra however, responded to it with stoic silence as he continued to hear cases in his court. The incident was enough to undermine the public’s faith in the judiciary and shatter all belief its uprightness as an institution. In months that followed, Misra met with the Attorney General K.K. Venugopal over the issue and is known to have initiated meetings with fellow judges. In concrete steps taken by him, he put in place a new roster system which allocated cases based on the subject matter they entail. Expected to ease the situation, it worked contrary a big chunk of important matters including all special leave petitions (SLPs), and matters related to public interest, social justice, elections, arbitration, and criminal matters, among others, were kept reserved to be heard by Misra himself. Misra had once again kept the other senior judges from hearing important cases while seizing all power to him.
By allotting the case of Judge B.H. Loya’s death before a bench headed by Justice Arun Mishra, it became clear that Misra had chosen Mishra, who is a junior judge in terms of seniority and is known to have close relations with the BJP to hear the particularly sensitive matter in which BJP President, Amit Shah was an accused. The unprecedented press conference alleging
Impropriety in the ways of allotment of cases by Misra, triggered from this very decision of selective allocation of the case did not deter him. After the court of Justice Arun Mishra asked for it to be placed before an appropriate bench, Misra slotted for it to be heard by a bench that he was heading. After hearing the case through months of February, March and early April, the court dismissed the batch of petitions seeking an independent investigation into the circumstances surrounding judge Loya’s death.
The court believed that there was no reason for it to doubt the clear and consistent statements of the four judicial officers. And that the documentary material on the record indicates that the death of judge Loya was due to natural causes. A bench of former CJI Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud termed the petitioner’s claims a serious attempt to “scandalize and obstruct the judicial process”.
On grounds of judicial independence, on the theory of having checks and balances and casting doubts on judicial officers, the court had acted in the capacity of a trial court and come to the conclusion that the evidence did not warrant an independent probe into the issue. The verdict was seen as yet another blow to the credibility of the institution which was firm in shielding itself from any outside scrutiny. It was criticized to have been passed under government pressure by closing all doors for any sort of independent and unbiased inquiry.
The building allegations and hostility towards Misra culminated in what was the first of its kind, a formal impeachment notice against a sitting Chief Justice. The impeachment notice moved by members of the opposition MP’s of the Rajya Sabha, led by the Congress was turned down by the Rajya Sabha Chairman, Venkaiah Naidu but the damage had been caused. To have a CJI at the helm of the country’s top judicial institution having an impeachment motion against him did little to inspire faith among citizens in the judiciary. The press conference leveling allegations of impropriety against him did not make the situation any better.
Allegations against Misra included his involvement to pay bribes in relation to a medical admission scam (medical college bribery case), antedating an administrative order of 6 November 2017 and alleged abuse of power in the selective allocation of cases. He also had on his name, as Deepak Mishra, a land allotment case in Odisha where the lease of land allotted to him was canceled by the state government due to irregularities in an affidavit he had furnished.
A contentious issue that plagued the judiciary in Misra’s tenure was regarding appointments to the higher judiciary. Since many years, the executive and judiciary have harbored a love-hate relationship and standoffs on this issue have been common. It was believed that Misra would bow to executive pressure because of which important judicial appointments kept going back and forth between the executive and judiciary. The way to end this back and forth would be by finalizing the memorandum of procedure, which is yet to take place. It became a regular affair for collegium’s recommendations to be rejected by the executive in his tenure.
In the face of vacancies, and more importantly the need for more judges to deal with the problem of the backlog of cases, Misra was not proactive on this issue. A particular appointment that was stalled was that of Justice K.M. Joseph which upon his elevation balled into a fiasco over his seniority in the Supreme Court. A laid-back attitude by Misra on judicial appointments resulted in an escalation of the conflict between the judiciary and executive. Questions on his leanings towards the executive were raised from time to time.
Just as there are two sides to every coin, in the face of hostility and what can be said to be one of the most turbulent tenures as a chief justice, Misra remained resilient. His strength came from staying silent on controversial issues and putting his head down to work on issues that mattered. Without worrying about the ramifications, he remained pleasant in his demeanor with members of the bar and was stern when need be. He was indulgent and did not lose his temper easily. He set up constitutional benches to wrap up important pending cases such as Aadhaar, Right to privacy, Section 377, Adultery, entry of women into Sabarimala temple, Ramjanmabhoomi- Babri Masjid dispute and others. These benches sat in the second half of the day month after month hearing these issues and reserving judgments.
By the last month, Misra was frantically working towards pronouncing all these big rulings. As fate would have it, the country’s perception of Misra in the face of hostility he was facing from outside and within the system (from fellow judges) was going to change. The last 20-working days before his retirement launched him into being the champion of women rights, privacy rights, individual autonomy, equality, and dignity. By the time he retired, he was hailed for taking up matters of national importance and laying down jurisprudence that will go to serve generations ahead. Apart from the landmark verdicts, the way he handled socio-political issues such as mob lynching, interference by khap panchayats in adult marriages was worthy of praise. Was this an attempt to revive his tainted reputation or was it his grand plan all along?
The fate of Aadhaar, the 12-digit biometricbased identification system was in Misra’s hand. His tenure had seen the entrenchment of Aadhaar into different aspects of lives of people and by upholding its constitutional validity in his verdict; he virtually sanctioned it being out of any legal trouble. This gave enormous power to the Centre but came with its own checks and balances.
Under the judgment by the constitution bench, Aadhaar was held to be nonviolative of a person’s right to privacy for the biometric details shared under it. Upholding the “larger public interest” involved, it could be mandatorily used by the marginalized and the poor for obtaining government benefits and subsidies. Held to
Be mandatory for the filing of ITR and allotment of PAN, it was clear that as a taxpayer or in need of a PAN card one could not disassociate with Aadhaar. The poor will need Aadhaar for their upliftment while the salaried/income class will need it for IT returns or PAN card, creating an infinite loop that will invariably ensure that no citizen is left out of its reach. Aadhaar for one or Aadhaar for all?
It was held to not be compulsory for opening bank accounts, mobile numbers and internet connections, school admissions, use by education bodies CBSE, UGC. On the face of it, this dispelled confusion regarding its mandatory use but it has opened a Pandora’s box. In nonmandatory cases, the govt saw an opportunity and has already started bypassing it, as Arun Jaitley has said that it was looking at restoring Aadhaar linking with bank accounts and mobile phones by passing a legislation. Similarly, the COAI has written to the govt suggesting measures such as taking a live photo of the customer at the point of sale, watermarking and geotagging and creating a unique digital identity for the customer.
By striking down Section 57 of the Aadhaar Act, the court wanted to ensure that private companies could no longer use the Aadhaar database or insist on Aadhaar for their services. This could be a good thing but payment banks, e-wallets, fintech players are expressing concerns and lobbying with the govt to introduce a legislation to continue using Aadhaar for identification purposes. Once again, the objective of limited Aadhaar entrenchment remains unfulfilled.
What Misra necessarily achieved through his verdict was a veiled attempt at restoring the legal basis of Aadhaar. It left the public feeling assured on one hand but left a host of lacunae for the government and private companies to exploit and continue using Aadhaar for their purposes. Looking at the judgment it is clear that the court has accepted most arguments drawn by the Centre as it is, effectively adopting its stand as theirs. The court’s stand on the application of the privacy test to Aadhaar also appears shaky. The country needed a watertight judgment on Aadhaar, instead, it got a watered-down version. The dissenting opinion by Justice D.Y. Chandrachud has offered insightful arguments on why Aadhaar was unconstitutional in its passage as a Money Bill and why it fails the test the privacy.
One, however, cannot overlook the court’s attempts at strengthening privacy provisions and fine-tuning the scheme’s focus from inclusion to the prevention of exclusion. By holding impermissible the sharing of metabase relating to the transaction under Aadhaar and reducing the time for storage of authentication records from 5 years to 6 months, it has signaled a more protective regime. Users also stand empowered under the ruling as they can now complain about the theft of personal data.
Crusader of women rights is the title Misra earned when he struck down a 158-year old legal provision (Section 497) which criminalized adultery by punishing a married man for having sex with another man’s wife. It carved an exemption in cases where it was performed with consent or connivance of the husband of the other woman and created a situation in which the woman had no say in such matters. The wife was exempted from punishment und er the law.
The provision was struck down for being misogynistic, based on treating women as chattel (a man’s property) due to which it could not be held suitable in today’s times. Any provision of law affecting individual dignity and equality of women invites the wrath of the constitution, Misra ruled. He added that it was time to recognize that the husband was not the master of wife and legal sovereignty of one sex over other sex was wrong.
Another instance when Misra exhibited unequivocal support for women rights and individual autonomy as a facet of dignity was by opening up Sabarimala temple in Kerala for entry of women of all ages. By doing so, he set aside all existing notions of gender discrimination emerging from the realm of religious belief and practices. This, however, attracted criticism on that grounds that the court should not have interfered in matters of religion as it would create a problem for other temples/mosques that deny entry to menstruating women. The court is likely to see a spur of legal challenges in this regard.
The best-fitted example for recognition of individual autonomy, sexual choice/expression and privacy under the Constitution could be seen when a unanimous verdict of the Supreme Court partially striking down Section 377 for being “irrational, indefensible and manifestly arbitrary”. The archaic provision criminalized same-sex consensual acts but its effect extended to heterosexual relations as well. The day of 6 September will go down as historic for the country saw, after a long legal battle, the recognition of the dignity of the LGBTQ community. All forms of discrimination, inequality, and restriction in daily lives of homosexuals were washed away.
Misra’s opening quote from a poem by German writer J.W. von Goethe, “I am what I am, take me as I am”, freed the country. The ruling also signaled an end to prejudice and social exclusion faced by members of the LGBTQ community for centuries because of an unsound law. Freedom was at the heart of the ruling as the court relied on its earlier principle in the privacy judgment where it called for equality and said that protection of sexual orientation was at the core of fundamental rights.
It was difficult to understand Misra as a judge. He was upfront and proactive about cases concerning civil liberties but docile while handling politically sensitive cases. His dealing in the Loya and Bhima Koregaon cases are examples where his unfathomable silence drew conclusions of him bowing down to govt pressure. The Loya case was outright rejected for the demand of an independent probe and Misra’s frustration on questions raised on judicial conduct were visible. The Bhima Koregaon case where the court turned down an SIT probe into arrest of five activists exposed deficiencies and unanswered questions in Misra’s ruling as against the strong dissenting stand of Justice Chandrachud.
Misra’s busy tenure was backed by reforms where he tried to ease the judicial system. He called for judicial transparency by publishing collegium decisions on the website and did away with the practice of mentioning by senior advocates by allowing only advocates on record to do so. Allowing journalists to carry their mobile phones inside courtrooms was a small step towards ensuring informed news. Pushing for greater transparency and accountability, he allowed for live streaming of important court proceedings- soon to be a reality for the nation.
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