By Kahini Iyer Sep. 28, 2018
Today is CJI Dipak Misra's last day as top judge. He will be remembered as the judge who scrapped Section 377 – but his legacy will be shrouded by the impeachment motion and the Justice Loya investigation.
t’s been a busy week at the Supreme Court. As Chief Justice Dipak Misra is set to retire on October 2, the top court has embarked on a decision-making bender, trying to close out landmark cases before his tenure comes to an end.
The week ended on a high note with the SC lifting the centuries-old ban on women entering Kerala’s famous Sabarimala Temple. Devotion cannot be subjected to discrimination and patriarchal notion cannot be allowed to trump equality in devotion, the CJI said. This is yet another significant step toward gender equality after Thursday’s decision to scrap the colonial adultery law that treated women as a “chattel of the husband”.
On Wednesday, a constitution bench led by Misra upheld the constitutional validity of Aadhaar. But the SC won brownie points for striking down Section 57 of the Aadhaar Act, which means we will no longer be pestered by Vodafone, Airtel, and your bank to link your Aadhaar card to your phone number and bank account.
Amid all the landmark judgments, what stands out are Justice Misra’s words after the revolutionary Sec 377 verdict. “I am what I am, so take me as I am,” he said quoting Goethe and advocating for the right of citizens to express their sexuality. Misra’s words were a powerful reminder that sexual preferences are not a choice and everyone has the right to love. “Look for the rainbow in every crowd… Equality and liberty and this freedom can only be fulfilled when each one of us realises the LGBT community has same rights as other citizens,” he said, after a judgement that elevated him to superhero status.
While SC judges have the power to effect tremendous change with landmark rulings of this kind, it’s difficult to deny that Justice Misra has been unique in his impact not only on the nation, but on the judiciary itself. The controversies he courted cannot be brushed under the carpet. After all, he has had the dubious privilege of being the only SC Chief Justice in history to face the threat of removal from his post.
Back in April, 71 members of Parliament petitioned VP Venkaiah Naidu to impeach Misra. Although Naidu promptly declined the motion, citing the sanctity of judicial independence, the move was precipitated by four SC judges speaking publicly against the chief justice.
It was a bit of a shocker, for the normally united judiciary to turn on one of its own. Then came the politicians leaping to convict a member of the judiciary, instead of the other way around. But the mutiny raised a question that will leave a blot on his legacy: How honourable has the four-decades long career of Justice Misra been?
The SC judges who called Misra out earlier this year made complaints about his running of the Court. But Misra’s history of controversy dates back to 1984, when he had applied for a tract of government land that was earmarked for the poor, citing himself as a landless Brahmin. Finally, in 2012, the lease was cancelled, because of Misra having misrepresented himself and committing fraud.
In 2016, following the fraud indictment, Misra’s lapse was brought to the attention of nearly every member in the upper and lower houses at the time. Nothing was done by any member of Parliament or judiciary to stall his ascent to the country’s highest judgeship.
This indictment against a sitting SC judge should have been explosive. Misra’s fraud conviction, his subsequent name change, and his willingness to exploit a government subsidy intended for the disadvantaged, were all enough to call into question his fitness for the top court in the land. So why did he continue to serve and become Chief Justice?
In a detailed Caravan Magazine report, Atul Dev points out that the reaction – or lack thereof – to Misra’s chequered past reveals a host of shortcomings within the system of judicial background checks. In 2016, following the fraud indictment, Misra’s lapse was brought to the attention of nearly every member in the upper and lower houses at the time. Nothing was done by any member of Parliament or judiciary to stall his ascent to the country’s highest judgeship.
Dev argues that CJI Misra went on to assign cases to benches with a view to determining their outcome – the same complaint made by the four SC judges who opposed him.
When it came to the investigations in the death of Justice Loya’s death, the CJI assigned Arun Mishra to the case, a judge who was reportedly elevated to the Supreme Court weeks after Modi became Prime Minister in 2014. It was a surprising choice considering the court was to take a call on whether to further investigate the death of Justice Loya, who was deciding on a murder charge against BJP president Amit Shah. And Dipak Misra’s proximity to the BJP is no secret. His nephew’s wedding in 2016 was attended by party bigwigs Arun Jaitley, Rajnath Singh, Vasundhara Raje, and Shivraj Singh Chauhan.
Atul Dev writes, “The Supreme Court under Misra is distinctly reminiscent of the institution in its dark days in the 1970s… (T)he pliancy of the Supreme Court in the face of a majoritarian government stands twice exposed.”
It’s a claim that, for the average citizen, is difficult to digest. While Indians have long known politics and law enforcement to be corrupt institutions, we’ve looked up to the the judicial system as our saviour. It might be interminably slow, clogged up with cases dating back years, but ultimately, the third pillar has been less susceptible to the rot of corruption that we witness everywhere else.
Perhaps the year of pathbreaking rulings under CJI Misra, particularly the decision to improve transparency of process, is his swan song – his atonement for past transgressions, and his attempt to restore the country’s faith in the Supreme Court. Especially now that he is ready to leave the post on a distinctly high note.