New Delhi: The outgoing Chief Justice of India Dipak Misra, who demits office on Monday, will go down in the history as one who brought in social reforms through his path-breaking judgements in the Sabarimala, Aadhaar, gay sex and adultery cases.
He leaves behind an indelible legacy as the Supreme Court rendered several judgments on all branches of law and commitment to human rights during his tenure. Monday is the last working day for Justice Misra though his actual retirement date is October 2. Justice Ranjan Gogoi will be sworn in on October 3 as the 46th Chief Justice of India.
Justice Misra is the 45th Chief Justice since August 28, 2017. He has been a judge of the Supreme Court and former Chief Justice of the Patna and Delhi High Courts. He is the nephew of Justice Ranganath Misra, the 21st Chief Justice of India, from 1990 to 1991.
Justice Misra’s commitment to upholding the supremacy of constitutional values and his refusal to flinch before the weight of societal morality and age-old customs is what will likely be remembered about him. Justice Misra had the dubious distinction of facing an impeachment motion in Parliament initiated by the Congress, which was rejected at the initial stage by the Rajya Sabha Chairman.
He had to face this ignominy as the Congress felt that he might bring about a solution to the Ayodhya title suits during his tenure. Justice Gogoi and three other judges — Justices J. Chelameswar, Madan B. Lokur and Kurian Joseph — held a press conference on January 12 complaining about Justice Misra’s style of allocation of important cases to junior judges and allotment of Judge Loya case to Justice Arun Misra became a trigger point.
Though this open revolt by four senior judges sent shock waves, Justice Misra proceeded to hear the cases unmindful of the complaint of lack of transparency in preparation of the roster system.
Within days, he put up on the Supreme Court website the classification of cases and the categories allocated to each Bench. He did not address the major criticism that he had kept to himself all the important cases, particularly those decided by the Constitution Benches, which he headed. None of the four judges were part of the Constitution Benches, except in one case where Justice Kurian Joseph was accommodated.
During the initial hearing of the Ayodhya title suits, senior Congress leader and advocate Kapil Sibal and senior counsel Dushyant Dave urged CJI Misra not to hear the matter at this juncture and adjourn the proceedings till July 2019, after the Lok Sabha polls. Both the lawyers said a verdict either way would result in serious consequences and impact the polls.
But CJI Misra did not buckle and continued to hear the case. Having failed in their efforts, a new demand was made to refer the case to a five-judge Constitution Bench and to revisit the 1994 verdict in which an observation was made that offering namaz in mosque is not an integral part of Islam. He has posted the matter for hearing from October 29, and it remains to be seen whether Justice Gogoi will render a verdict before the polls next year.
In informal chats, Justice Misra has indicated that he would not take up any post retirement posts and it remains to be seen whether he sticks to this principle.
During his tenure he gave several verdicts which impact society at large. Particularly in the last few days prior to his retirement, Justice Misra’s bold judgments are bound to bring about social transformation. Here are few such judgments.
Bringing the curtains down for the nearly four-decade-old Cauvery river dispute, the Supreme Court reduced the allocation of water to be released by Karnataka from its reservoirs from 192 tmcft to 177.25 tmcft. “Drinking water requirement of the overall population of all the states has to be placed on a higher pedestal as we treat it as a hierarchically fundamental principle of equitable distribution. The waters of an inter-state river passing through the corridors of the riparian states constitute national asset and cannot be said to be located in any one state,” the court said.
The Supreme Court’s 4:1 ruling that the exclusionary practice violates the rights of women devotees establishes the legal principle that individual freedom prevails over purported group rights, even in matters of religion. The three concurring opinions that form the majority demolished the principal defences of the practice that Sabarimala devotees have constitutionally protected denominational rights that they are entitled to prevent the entry of women to preserve the strict celibate nature of the deity, and that allowing women would interfere with an essential religious practice. The decision reaffirms the Constitution’s transformative character and derives strength from the centrality it accords to fundamental rights.
In upholding the Aadhaar law and clarifying areas in which it cannot be made mandatory, the Supreme Court restored the original intent of the programme: to plug leakages in subsidy schemes and to have better targeting of welfare benefits. A unique identity number, that could be availed on a voluntary basis, had threatened to morph with the Centre’s tacit acceptance into something that was mandatory for various aspects of life. The judgement narrows the scope of Aadhaar but provides a framework within which it can work. The controversial circulars and rules making it mandatory to link mobile phone numbers and bank accounts to Aadhaar and compulsory for schools and college admissions, scholarships, examination have been declared unconstitutional.
In de-criminalising IPC Section 497 relating to adultery, CHI Misra laid emphasis on transformative constitutionalism, that is, treating the Constitution as a dynamic document that progressively realises various rights. His ruling furthered the frontiers of personal freedom and liberated the idea of individual rights from the pressure of public opinion. Constitutional morality trumps any imposition of a particular view of social morality. The judgement categorically said the State has no legitimate interest in punishing citizens for matrimonial or personal aberrations.
It has long been a blot on society that while leprosy is curable, there lingers a stigma attached to it. Justice Misra’s ruling that stigma attached to leprosy should be removed and they must be rehabilitated will go a long way in society’s thinking towards leprosy. It may mark the beginning of the end to the culture of ostracisation that most of them face and help remove misconceptions about the disease.
The court said there can be no shadow of doubt that the authorities who are conferred with the responsibility to maintain law and order in the states have the principal obligation to see that vigilantism, be it regarding the cow or any other, of any perception, does not take place. The court said states shall designate a senior police officer, not below the rank of SP, as nodal officer in each district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.