#BQDebates: How Will Outgoing CJI Dipak Misra Be Remembered?

Leading lawyers reflect on outgoing Chief Justice of India Dipak Misra’s legacy.

Former Chief Justice of India Dipak Misra.

(Photo Courtesy: IANS)

Chief Justice Dipak Misra completes an eventful 13-month tenure, as India’s senior-most judge, on 2 October. His final month on the bench has seen landmark rulings being delivered, on Section 377 of the Indian Penal Code; the constitutional validity of Aadhaar; allowing women of all ages to enter the Sabarimala temple in Kerala; and the decriminalisation of adultery.

The tenure has also been controversial at times, with the Chief Justice’s brother judges questioning his roster system in the allocation of cases to benches. That dispute led to an unprecedented press conference in January 2018, by four serving judges of the apex court, including Justice Ranjan Gogoi, who succeeds Justice Misra as Chief Justice of India.

Leading lawyers reflect on CJI Misra’s legacy.

‘Practical Ways of Rendering Justice’

- Anand Grover, Senior Advocate, Supreme Court

It is always difficult to do an evaluation of the outgoing Chief Justice of India in a couple of paragraphs, especially when controversy surrounded Justice Dipak Misra before and during his tenure as the CJI.

But evaluate we must.

As the last week has shown, the CJI is a prolific judgment writer.

Most of the judgments in the last week are clearly stamped with values of Constitutional morality.

The trend that was initiated with the Puttaswamy privacy judgment was continued in the judgments rendered by CJI Mishra in the cases of Section 377, adultery, Sabarimala etc. In these judgments, CJI Mishra developed these concepts in his own manner.

Of course the discordant notes were in the Loya, Aadhaar and the Bhima Koregaon cases. And the rostering judgment, which many at the bar would like to forget. The procedure followed and the role of the bar left much to be desired.

It is not that CJI Misra will be remembered either by the Constitutional cases (positive cases) or the other cases (negative cases). Like everyone else, he had a complex and a many-layered personality which was manifest in court. For me, CJI Mishra had another side to it which a lot of lawyers will remember him by.

• First, he never shirked work. He was always ready to take up a challenge.
• Second, he would always give everyone a hearing. In his court, one never felt that one has not been heard.
• Finally, he always had feeling for the underdog. Whenever he found that there was injustice, he would try to ensure that justice was rendered.

Above all he had practical ways of rendering justice. That is what matters to the litigant.

‘Very Sensitive to Women’s Issues’

- Sidharth Luthra, Senior Advocate, Supreme Court

Chief Justice Misra’s tenure as a puisne judge and thereafter as Chief Justice will be remembered for the many decisions rendered by him, from the freedom of speech to upholding criminal defamation.

His tenure as the Chief Justice meant that he presided over a record number of five-judges and larger benches, dealing with wide ranging topics from Aadhaar, the role of a chief justice as the master of the roster, decriminalisation of gay sex, upholding the right to privacy, among others.

Justice Misra had a penchant in his judgment, and even in court, to refer to classical literature and occasionally even quotations in Sanskrit, demonstrating that he has wide range of reading and knowledge beyond the law.

In court, he was, more often than not, soft spoken and liberal in requests made to him by counsels for accommodating an additional case, for urgent listing. He will be remembered for this.

The range of matters he dealt with were varied – dealing with animal rights, criminal law, environment, religious issues, reservation, amongst others – and he will be fondly remembered as the judge who was very sensitive, specifically to women’s issues and animal rights.

‘Bold Enough to Overturn Earlier Judgments’

- Homer Pithawalla, Senior Professor, Government Law College, Mumbai

In the last 10 or 12 days, I think he has given judgments on a number of cases. Normally what happens is that when Chief Justices are due to retire, they are always looking forward to some post-retirement appointments, and are generally scared to give any judgments against a government.

But this gentleman was bold enough to give many judgments which have gone against the philosophy of the ruling party.

For example, he said that the Aadhaar linking with banks and sim cards is illegal. Then he also struck down the homosexuality section, the adultery section, and these have been there for decades. So, it required, maybe, a bold person, on the eve of his retirement, to do this.

In the Aadhaar case, I think he struck a very good balance because he didn’t say Aadhaar is invalid. He held Aadhaar is valid, but delinked it from bank accounts, mobile phone connections etc. I think that shows a very good line of thinking.

Another interesting thing is that in three cases, he had colleagues on the bench dissenting. Justice Indu Malhotra dissented in the Sabarimala case, and it was Justice DY Chandrachud in the Aadhaar and five activist case. Look at it from a different angle, that these two judges felt free to sort of oppose, if I may say so, the Chief Justice.

I feel that he has created an era of confidence and comfort, that a junior judge can be bold enough to say that, look I don’t agree. This does not really happen very often.

The only unfortunate episode in his tenure was when the four senior-most judges below him held a press conference, where they were criticising the Chief Justice for not consulting them on many things, particularly in the matter of which bench hears which case.

Remember, Justice Ranjan Gogoi was one of the four. While the normal practice is that the senior most judge will become the next chief justice, that is not necessarily cast in stone. Justice HR Khanna was superseded because he gave a dissenting judgment during the emergency imposed by Indira Gandhi.

As Chief Justice Misra’s tenure drew towards a close, there was a lot of speculation whether the Chief Justice would name Justice Gogoi, who had participated in the press conference against him.

I think it was very fair and just of Chief Justice Misra to forget the earlier differences and recommend Justice Gogoi.

He was bold enough to overturn earlier judgments. For example, on homosexuality, Justice AP Shah had held in the Delhi High Court that the section which punished same-sex sex is wrong. But the Supreme Court subsequently held that is punishable. It was brave on the part of the present bench to overturn this.

The same applies for the adultery case. Other members of the court share that approach. In the right to privacy judgment, Justice DY Chandrachud was overturning a ruling that his father had given.

With his vision, Justice Misra would make a good chairman of the Law Commission.

(The story was first published on BloombergQuint)