By Amritananda Chakravorty
Judging the judge is a difficult task. Should one only go by the judgments written by the judge or by her actions in strengthening or weakening the institutions? Sometimes, they overlap; sometimes they don’t. Looking at Chief Justice Dipak Misra’s tenure for more than one year (28th August, 2017 to 2nd October, 2018), one feels an overwhelming sense of loss: loss of institutional integrity, loss of judicial independence, and an overall, loss of public faith in the Supreme Court of India.
If there is one defining mark of Chief Justice Misra’s tenure, it would be the unprecedented press conference held by the four senior most judges, including the incumbent chief justice, Ranjan Gogoi, on 12th January, 2018. The picture of four senior most judges sitting together and answering questions from the press would endure for a long time. The reasons for that press conference are well-known, i.e., arbitrary allocation of cases to benches allegedly ‘close’ to the present government, but it was triggered by the allocation of the plea of seeking an independent investigation into Judge Loya’s death. Without getting into oft-repeated details, what merits consideration is that the press conference was preceded by an almost breakdown of communication between the Chief Justice and the four senior-most judges.
Even before that, his office was marred by allegations of corruption in the medical college scam, wherein his name cropped up in the context of an investigation by CBI in September, 2017 about possible influencing of Supreme Court proceedings to get favourable orders for Prasad Educational Trust wanting to set up a medical college. Thereafter, activist lawyers like Prashant Bhushan approached the Supreme Court to seek an independent investigation, so as to protect the CJI’s office from political pressure. On 9th November, 2017, a similar petition was filed by another petitioner, which was mentioned before Justice J. Chelameswar, who considering the seriousness of the issue, set up a Constitution Bench to hear the case, which was hurriedly nullified by an order of the Chief Justice Mishra, who then set up another Constitution Bench, asserted his powers as ‘Master of Roster’, and dismissed the said petitions. This was the start of Chief Justice Mishra defending his powers as the ‘master of roster’ to arbitrarily allocate cases to benches, notwithstanding their expertise or experience, which he then repeatedly asserted in different decisions [Campaign for Judicial Accountability and Reforms vs. Union of India, Writ Petition (Crl). 169 of 2017, date of order: 10.11.2017, Shanti Bhushan vs. Union of India, Writ Petition (Civil) No. 789 of 2018, date of judgment: 06.07.2018].
It is evident that the Chief Justice Mishra used the ‘master of roster’ excuse as a justification to arbitrarily run the administration of the Supreme Court, not consult with four senior most judges (who were not put on any of the Constitution Bench cases), and to not stand up to the executive bullying and arm twisting, when the Central Government refused to accept Justice K.M. Joseph’s elevation to the Supreme Court for months. The damage to the institutional integrity and independence in Chief Justice Misra’s tenure is unparalleled, and even irredeemable.
Even on the judicial front, Chief Justice Misra’s tenure has been a mixed bag. In fact, his tenure would be remembered more by the decisions he did not write (Judge Loya, Aadhaar, Babri Masjid reference, and Bhima Koregaon, amongst others) than what he wrote (Government of NCT, Section 377, Adultery and Sabarimala, amongst others). And it is very clear why he did not write those decisions, since they were at the heart of what troubled the Government in power or caused them huge discomfort. Before he came Chief Justice, Justice Mishra was again more famous for the hugely controversial decisions, like making national anthem mandatory, upholding the offence of criminal defamation in Section 499, IPC or the early morning hearing in Yakub Memon’s case in July, 2015, which mostly wrong in law, and did not comply with constitutional jurisprudence. It’s an irony that Chief Justice Mishra known as ‘gender warrior’ for his slew of judgments upholding ‘gender justice’ failed to uphold the same principles of autonomy and choice, when it came to cases like national anthem. His insistence on ‘constitutional patriotism’, an oxymoron in itself, was done at the expense of ‘constitutional morality’, discussed at length in the later judgments.
In fact, bereft of convulated words and long sentences, Chief Justice Misra’s judgments are a study in dichotomy, wherein he seems to be pulled into totally contradictory positions on questions of freedom of speech, civil liberties, freedom of religion, etc. While in Hadiya’s case, he waxed eloquent about freedom to choose one’s religion as integral to one’s autonomy, he signed on to the decision in Babri Masjid’s case, wherein the Court held that praying in a mosque was not an essential tenet of Islam. Contradictions between his national anthem order and decisions on freedom of speech have been referred before.
Lastly, Chief Justice Dipak Mishra was the first sitting chief justice of this country who faced an impeachment motion in his tenure, which though dismissed by the Vice President, was one of the lowest points in the history of the Supreme Court of India. The allegations in the motion were of such serious nature that it warranted an independent investigation, which was unfairly denied, by both the Executive and the Judiciary.
History will judge Chief Justice Misra’s tenure more for his indiscretions and his damage to the institutional integrity of the highest Constitutional Court of this country. This example, in fact, brings out the serious flaws in the Supreme Court collegium system of judicial appointments, wherein someone with highly questionable integrity and credential could become the chief justice of India. The lawyers and jurists deserved better. The Supreme Court deserved better. And most importantly, the people of India deserved better. (IPA Service)
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