Why does a constitutional republic vest in judges the power to review the functioning of the legislature, the real representative of the people in a democracy? There are certain assumptions at play here. One, that judges are not elected directly by the people and, hence, are immune to popular pressure. They are expected to go by the spirit of the law, even if not by its letter. There is an expectation that judges, without the fetters of popular pressure, will be better at moral reasoning than politicians.
Given these assumptions, the fatal fault for any judge is a perception that he or she is malleable to political influence. When this perception takes root, the authority of the judge as a person capable of superior moral reasoning crashes. And with it erodes the institution of the judiciary.
Chief Justice of India Dipak Misra retires on Tuesday after a tumultuous year in office, perhaps the most controversial in the history of the Supreme Court of India. How do we judge such a judge? As chief justice, Misra’s reign may be seen as one of the most liberal in terms of judicial pronouncements. He has presided over judgements that have furthered individual rights and equality before law in a profound way. Outside his judicial functions, he dragged the Supreme Court into a period of chaos and earned the dubious distinction of being the first chief justice against whom an impeachment motion was attempted. Even as he contributed to the strengthening of individual rights, he concentrated power in the office of the chief justice. His was a reign of dichotomy.
In any analysis of such a complex figure, there is always the urge to compartmentalise various facets and, perhaps, give him the benefit of the doubt. Does Misra qualify for this largesse? Or are we to use the scalpel of logic to tear the veil that supposedly covered his functioning?
Seeds of controversy
Misra’s controversial tenure was in a way foretold. The seeds were sown much earlier. When it became clear that he would become chief justice, the ghost of what appeared to be a land scam reared its head. In 1985, a district magistrate in Cuttack had declared that Misra had made a fraudulent representation about his economic background to purchase a plot of land under a government scheme. The land remained in Misra’s possession till the records were corrected by the local administration in 2013, as was revealed in a probe by the Central Bureau of Investigation. Nothing really happened after these revelations. Misra continued with his judicial functions in the apex court, and despite activists raising the question of propriety in his appointment to the country’s top judicial position, he took oath of office on August 28, 2017.
A corruption allegation against a judge is not the same as an allegation against a politician. The independence of a judge is determined by his ability to resist popular and political pressure. What a corruption allegation, in which a central investigation agency is involved, does is that it gives the government a hold over a judge, even when there is a presumption of innocence. When it comes to people holding high offices, the smear of a corruption allegation is a hazard that dents their name in public.
Misra had a chance to redeem himself in office. If this allegation of impropriety was to be wiped off, he was expected to display fierce independence and commitment to the image of the judiciary. This was not to be.
Within a month of Misra taking over as chief justice came what is now called the “medical colleges scam”. A first information report registered by the Central Bureau of Investigation on September 19, 2017, claimed that attempts had been made to manipulate Supreme Court proceedings to obtain permissions in favour of a medical college run by the Lucknow-based Prasad Education Trust, and named former Odisha High Court judge IM Quddusi as an accused.
In October, activists moved petitions seeking an independent inquiry into the matter. On November 9, the petitions were mentioned before a bench headed by Justice J Chelameswar, who was then the second most senior judge, as Misra was presiding over a Constitution bench. Chelameswar sought the formation of a five-judge bench to deal with the petitions. The next day, following an order from a two-judge bench handling a similar petition, a Constitution bench was quickly put together to nullify the orders of Chelameswar’s bench. In the process, the power of the chief justice as master of the roster was asserted. Later, the petitions were dismissed.
The answer to why Misra put together a Constitution bench so quickly to nullify the order of another bench has remained in the realm of conjectures. Was he only asserting the right of the chief justice to form benches? Or was there something more?
This controversy led to the most acrimonious phase in the history of the Supreme Court and an unprecedented press conference by senior judges in January.
Battle of judges
Four senior judges of the Supreme Court who comprised the collegium at the time – Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph – met the press in January and, in the process, laid out a series of questions on the functioning of the chief justice in assigning cases to particular benches. The press conference happened in the context of a petition seeking an investigation into the death of Maharashtra judge BH Loya. At the time of his death in November 2014, Loya was adjudicating the case relating to the alleged staged encounter killing of Sohrabuddin Sheikh. One of the accused at that time was Bharatiya Janata Party president Amit Shah, but he was discharged from the case in December that year.
“The administration of the Supreme Court is not in order,” the judges said at the press conference. The implication of the statement was clear. There was an attempt to fix benches and senior judges were being kept out of important cases. The independence of the judiciary was in peril.
Misra’s response to these accusations was silence. He did not counter the four judges in public. But it was quite clear that he was in no mood for a truce. Weeks later, another bench reasserted the supremacy of the chief justice in assigning cases to benches. In February, Misra came out with a portfolio-based case assignment system, keeping to himself important areas of law, including Article 32 petitions or public interest litigation.
The jury is still out on what the press conference really achieved apart from the drama it created. Within weeks, the court returned to its original opacity, with the judges themselves claiming that this was an internal matter. Far from being the harbinger of change, the event left the public exasperated at the functioning of the judges. The Loya case ended in the dismissal of petitions seeking an independent inquiry.
Misra’s role in the collegium – which is made up of the Supreme Court’s five senior-most judges – also drew sharp reactions. In the elevation of Justice KM Joseph to the Supreme Court, which the BJP-led Union government did not want, Misra managed a balancing act like a tightrope walker. The collegium managed to elevate Joseph, but not before ceding space to the executive in bring down his seniority on the bench.
Liberal judgements
After the storm of the press conference passed, the focus was back on the judicial functions of the chief justice. Despite the protests of the four judges, they continued to be kept off important cases.
By May, it was clear that Misra would be delivering judgements in a slew of high-profile cases, including the constitutionality of Aadhaar, the entry of women into the Sabarimala temple, the decriminalisation of adultery and homosexuality, and the incidental questions to the Babri Masjid-Ayodhya dispute.
How much of the controversy surrounding Misra was about the nature of his functioning and how much was the result of politics outside the court is a serious question. When Misra began hearing the Babri Masjid-Ayodhya case, parties wanted the hearings postponed till after the general elections in the first half of 2019. Congress leader and senior lawyer Kapil Sibal pressed for the dates to be pushed back, questioning what the urgency was given the sensitive nature of the case.
The court did not accede to this demand. It was the same Congress that had in April pushed for an impeachment motion against Misra. Did the party do it because it was convinced that Misra was involved in wrongdoing? Or was it because it wanted to put pressure on Misra to hold back from deciding the Babri Masjid-Ayodhya case quickly? Given the political nature of the case, one can never be sure. A decision paving the way for a Ram temple in Ayodhya would have been a major boost for the BJP ahead of the general elections.
What is also fairly ignored in commentary is that the decision of a bench, even if presided over by the chief justice, is a collective decision. The majority’s will prevails and a judge not in favour of the majority judgement can dissent. However, the process is that of collective decision-making. For example, in the Loya case, it was Justice DY Chandrachud who wrote the unanimous judgement. Those who accuse Misra of succumbing to political interference often forget that the implication of their allegation is that the entire bench colluded in delivering a tailor-made verdict for the political establishment.
If one could call something Misra’s forte, it would be his articulation of gender equality and freedom of speech. Whether it is ending the ban on the entry of women to Sabarimala, reinstating the marriage of Hadiya, decriminalising homosexuality and adultery, Misra has managed to deliver far-reaching verdicts protecting the cause of liberty. Critics would say these are easy pickings. Given the convoluted language Misra uses in his judgements, there are also doubts about how much his opinions would be cited in future, given that other judges on these benches have articulated these points better. But here, too, the disparity comes out. While the positives go to the others, the negatives stick to Misra. Not many give him credit for putting together a bench for a midnight hearing in May when the Congress challenged the Karnataka governor’s decision to give the BJP’s BS Yeddyurappa an unusual amount of time to prove his majority in the Assembly after the state elections threw up a hung verdict.
But Misra has slipped in matters of autonomy and liberty too. His order in November 2016 making it mandatory for cinema halls to play the national anthem before each movie screening – which was eventually watered down by a bench he presided over as chief justice in January this year – stands out for its poor conception of patriotism and liberty.
Legacy and challenges
Misra leaves behind a mixed legacy, of furthering individual rights on the judicial side but eroding the image of the institution on the administrative side. While critics could be blamed for exaggerating certain events that showed Misra in a poor light, there is no doubt that the Supreme Court has seen better chief justices.
His departure from office also means ethical challenges for his successor, Justice Ranjan Gogoi, who will take the oath of office on Wednesday. Having been part of the January press conference, Gogoi now has the responsibility of setting right what he felt was wrong. This means an adherence to absolute independence.
It would also be interesting to see how the judge will proceed if fresh petitions are filed for a judicial investigation into the medical colleges scam. For the sake of the judiciary, this may be a necessity. Letting the controversies rest with Misra’s exit may not be an option.