Dipak Misra retires leaving behind a mixed legacy

Last Updated: Thu, Oct 04, 2018 14:32 hrs
Dipak Misra

The outgoing Chief Justice of India Dipak Misra has had a busy past few weeks. Delivering key and historic judgments on LGBTQ rights, Aadhaar constitutionality and the right for women to enter into the Sabarimalai temple, Dipak Misra has certainly earned himself a spot in legal and judicial history.

His 13 month tenure beginning on 28 August of last year wasn’t devoid of controversy. In January of this year, an unprecedented event took place. A press conference was called by four colleagues of his taking their concerns public with regard to the independence in the judiciary and allotment of cases. At that press conference, Justice Chelameswar said in part, “The administration of the Supreme Court is not in order”. Another justice in attendance at the press conference, Justice Ranjan Gogoi, is now the new Chief Justice of India, on the recommendation of Misra himself. In making that recommendation, he honored tradition in naming the next senior most judge.

His tenure began with what many believed was on a good note. He made the recommendations of the Collegium public. Following a resolution of the five most senior judges, this would ensure more transparency in judicial appointments. So all the more remarkable was the press conference in January. He maintained his silence on the concerns of his fellow justices following their public criticism; perhaps thinking of the institution than himself.

Over the past few weeks, Justice Misra and indeed the apex court have been lauded in delivering historic judgments, in particular regarding matters to constitutional and human rights -

“I am what I am. So take me as I am. No one can escape from their individuality”, he said as he delivered the judgment that struck down Section 377 which criminalised homosexuality.

“It is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity”, he said in a judgment that threw open the doors of the Sabarimala temple to all woman of all age groups.

In striking down the 158 year old Section 497 of the Indian Penal Code which criminalises adultery, he said in part, “Thinking of adultery from the point of view of criminality would be a retrograde step”. Noting that the court has ‘travelled on the path of transformative constitutionalism’ he said in his judgment, “it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression”.

He even modified his own 2016 interim order on the national anthem being mandatory in movie theatres. Summing up the last few weeks, Narasimhan Vijayraghavan, practicing advocate, Madras High Court, in a column for the Deccan Chronicle writes –

“A week, they say is a long time politics: it seems longer in judiciary too…he has written himself into the annals of judicial history as being part of a series of epocal pronouncements”.

The press conference aside, he also faced an impeachment effort. After months of controversy surrounding Justice Misra following the press conference, several opposition parties including the Congress took the unprecedented first step towards in impeachment. His legacy will be studies in the years ahead. Lawyer and author Gautam Bhatia, in a column forthe Wire, writes on Justice Misra’s legacy –

“My argument is that CJI Misra’s judicial tenure represents the high-water mark of a tradition in the Supreme Court that can be described as “outcome-oriented. If earlier we had ends at the cost of means and outcomes privileged over reasons, in CJI Misra’s judgments, we find ends without means and outcomes without reasons”.

It is fair to a certain extent to look at his judgments, irrespective of whether one agrees with them or not, and examine the manner in which he came to his conclusions. His jurisprudence can and will be analysed by legal scholars and judicial experts for decades. His words will be parsed and cited in future hearings and his judgments be used as precedent for future judgments. Bhatia notes the roadmap taken by Justice Misra in his judgments and points out this –

“In Chief Justice Misra’s judgments, text does not matter. Precedent does not matter. Legal consistency does not matter. Jurisdiction does not matter. Maintainability does not matter. Separation of powers does not matter. Judicial propriety does not matter. Reasons do not matter”.

From his time practicing law at the Orissa High Court, to him being elevated as the chief justice of the Patna and Delhi High Courts, he then became the Chief Justice of India. However, in a comprehensive profile in Caravan Magazine, his rise isn’t without controversy relating to him being indicted for fraud in an old case where the reason given for an acquisition of land was false.

Retired Air force officer turned broker for land deals Jayanta Kumar Das came upon a 30 year old order by the additional district magistrate of Cuttack in “State v Sri Deepak Mishra”. At the time the spelling he used was different. Using RTI, Das felt compelled to expose corruption he said he witnessed. With regards to Misra, he sent petitions to both CJI TS Thakur and his successor JS Khehar explaining his concerns on Misra’s transgression. With little to no response, the following year in 2017, Misra takes oath as the new Chief Justice. With regards to this, Atul Dev writes in the Caravan profile –

“The optics of this is devastating. In effect, the workings of all the benches of the Supreme Court during Misra’s time at the top can no longer be absolutely above suspicion. Even where justice is done, it may not be seen to be done”.

He called the Indian judiciary “the most robust institution” in the world in his farewell speech. He began his speech by saying, “history can be sometimes kind, and unkind. I don’t judge people by their history but by their activities, perspective”. This is certainly true as his legacy will be judged in the years ahead.

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