Above: CJI Dipak Misra/Photo: Anil Shakya
Chief Justice Dipak Misra’s tenure will be remembered as a turbulent phase in the apex court’s history. Yet, he, too, has left an indelible legacy, just like some of his predecessors
~By Venkatasubramanian
The 45th Chief Justice of India (CJI), Justice Dipak Misra, who retires on October 2, has had just a year in office. Yet, it was one of the most turbulent phases of the Supreme Court’s history. If, despite the acrimony and controversies that marked his tenure, the succession to this office by the next CJI-appointee, Justice Ranjan Gogoi, is smooth, it has more to do with the strength of the institution and convention—a clear legacy from the past. CJI Misra had no hesitation recommending Justice Gogoi as his successor despite the latter making his disagreements with him public, and thus has done the institution proud.
Justice Gogoi was one of the four judges who participated in the controversial press conference on January 12 this year to make their criticism of CJI Misra’s role as the master of the roster public. The four judges alleged that the CJI allocated sensitive cases to preferred benches and expressed their concern that democracy was in danger. Fortunately, the turbulence caused by the press conference blew over and it was business as usual at the Supreme Court. The judges concerned did not allow their differences with the CJI to affect the functioning of the Court and the Judiciary as an institution.
In keeping with the dignity of his office, CJI Misra was always reticent when it came to conflicts within the Court. He always preferred to speak judicially, and on the administrative side, let his actions speak for themselves. He introduced quite a few reforms here, which were long overdue.
Making the decisions of the collegium transparent by publishing them online was one such reform. It endeared him to the public at large, even if it displeased some of his own colleagues, and those whom the collegium did not consider for appointment as judges to high courts and the Supreme Court. Justices Kurian Joseph and Madan B Lokur had expressed concern that publishing the reasons online for rejecting a candidate recommended by the high court collegium for appointment as a high court judge would harm his right to privacy and reputation. But on balance, the initiative was bold and refreshing. In one stroke, it neutralised the opposition of his colleague, Justice J Chelameswar, to the manner collegium proceedings were being conducted all these years. Chief Justice Misra’s immediate predecessors, Chief Justices JS Khehar and TS Thakur, were embarrassed and helpless when Justice Chelameswar made his decision to boycott the collegium meetings public on the grounds of lack of transparency.
Chief Justice Misra’s decision to publish the roster of judges on the Supreme Court’s website was another bold move despite the criticism that he kept all major subjects to himself and hardly trusted his senior colleagues.
While the January 12 press conference was a major embarrassment for him, he tided over the crisis with patience and perseverance and efforts to redress the concerns of his colleagues to the extent possible. His reforms did not fully restore the trust of his senior colleagues in him, but at least stopped further erosion.
The composition of benches by him as the master of the roster continued to make them unhappy, but on this, he refused to compromise and sought to preserve his turf. Much has been made about the exclusion of collegium judges from constitution benches hearing important cases.
While the criticism that this stemmed from his lack of trust in them is valid, statistics show that one of his predecessors, CJI P Sathasivam, also excluded the collegium judges from most benches constituted to hear important matters during his year-long tenure, but it did not attract any controversy then. It is not clear what convention was broken by CJI Misra as the master of the roster, as is widely assumed.
The reiteration of the recommendation to appoint Chief Justice of the Uttarakhand High Court KM Joseph as a judge of the Supreme Court by the collegium, although belated, showed that as CJI, Misra was keen to continue the legacy of a unanimous collegium.
Historians will, however, debate whether he was correct in ceding ground to the centre and in not insisting on the seniority of Justice Joseph as originally recommended by the collegium.
The question whether as the CJI, Misra could have done more to fill the vacancies in high courts and the Supreme Court by asserting the role of the collegium vis-à-vis the centre remains. He stoutly resisted pleas from the bar and his own colleagues to try the judicial route to force the centre to finalise the Memorandum of Procedure (MoP), which has been hanging fire since the pronouncement of the judgment in the National Judicial Appointments Commission case in 2015.
For this, his predecessors were equally to blame. Neither former CJI Thakur nor CJI Khehar was inclined to adopt the judicial route to force the centre to agree to the revised MoP. As their tenures were limited, the centre could easily outwit them and evade scrutiny of its omissions and commissions regarding the stalemate over the MoP.
CJI Thakur publicly wept over the intransigence of the centre in filling judicial vacancies, while CJI Khehar was too trusting of the centre on this issue. CJI Misra sought to implement the guidelines despite the stalemate without making a hue and cry over the differences between the centre and the collegium on certain clauses in the proposed MoP. Introduction of transparency in the appointment process was one such guideline, which he rightly felt should not wait for the finalisation of the MoP.
On the judicial side, the reactions to his judgments were mixed, although some of the landmark verdicts authored by him and backed by the majority of judges on the bench stand out for their contribution to legal reforms.
Among his immediate predecessors since 2000, only Chief Justice AS Anand (1998-2002) and CJI KG Balakrishnan (2007-10) had tenures of three years each. CJI SH Kapadia (2010-12) had a tenure of about two years. Other former CJIs—SP Bharucha, BN Kirpal, GB Pattanaik, VN Khare, S Rajendra Babu, RC Lahoti, YK Sabharwal, Altamas Kabir, P Sathasivam, RM Lodha, HL Dattu, TS Thakur and JS Khehar—had just around a year and a few months, or less than a year in office.
Each CJI brings to the office a temperament and philosophy of his own and an approach to administer the affairs of the Court within the limited time in office.
Take, for instance, the setting up of constitution benches to hear and settle important issues. The CJI, as master of the roster, has a huge responsibility to decide which issue should get priority and which should be referred to a constitution bench. On this, there have been certain disappointments.
CJI Kapadia, for example, did not think the challenge to the Delhi High Court’s 2009 judgment in the Naz Foundation case should be referred to a constitution bench of five judges. Here was a case in which many intricate and substantial questions of the Constitution and law were to be resolved which, according to Article 145(3), ought to have been assigned to a five-judge bench. Instead, he assigned it to a two-judge bench, whose judgment in 2013 in the Suresh Kumar Kaushal case, undoing the Delhi High Court’s landmark judgment decriminalising consensual gay sex, marked a black chapter in the Court’s history.
It then took five years for the victims of Section 377 of the Indian Penal Code to rethink their legal strategy. They sought its reading down on September 6 this year by a larger bench of five judges in Navtej Johar v Union of India. Despite Johar filing the petition in 2016, successive chief justices since then did not think the matter required early hearing by a constitution bench till CJI Misra did.
CJI Dattu, for instance, did not consider the Aadhaar matter and the right to privacy necessary to be resolved at the earliest by constituting the benches of required strength. As a result, his successor, CJI TS Thakur, too, did not give it the requisite priority.
Meanwhile, Aadhaar became a fait accompli with the centre defying the Court’s interim orders not to make enrolment under Aadhaar mandatory. It was left to CJI Khehar finally to break the logjam and constitute a nine-judge bench to hear the right to privacy case as a prelude to deciding the Aadhaar matter. The unanimous verdict of the bench upholding the right to privacy as a fundamental right was the richest legacy of CJI Khehar’s brief tenure.
Chief Justice-Designate Gogoi’s tenure of one year raises huge expectations about the likely reforms he has in mind, and which he hopes to initiate during his stint. In this endeavour, he is sure to find the institutional legacy left by his predecessors useful, both to draw lessons from and to leave an imprint of his own.