Why We Should Watch Out Once Dipak Misra Assumes CJI’s Seat
After the Union government confirmed the nomination of Justice Dipak Misra, he is all set to take over from Justice JS Khehar as the 45th CJI on the 28 August. He will have a term of approximately 14 months, about the average length for a CJI in the last couple of decades.
Justice Misra has been a judge for a little over 20 years now, elevated to the Orissa High Court and transferred shortly thereafter to the Madhya Pradesh High Court, before being appointed Chief Justice of the Patna High Court and later the Delhi High Court.
He’s been a Supreme Court judge for a little less than six years. He follows in the footsteps of his uncle Ranganath Misra who was the CJI in the 1990s.
In his tenure so far, Justice Misra has been on benches that have decided a whole range of important issues, leaving us enough clues for what to expect during his term as CJI.
Leaving aside the prosaic texts of most of his judgments because of his bombastic and often hilariously incorrect use of the English language, the substance of these judicial pronouncements do not portend much good for Indian citizens.
1. Death Penalty Cases
Justice Misra has presided over two important death penalty cases – the mercy petition of Yakub Memon and the appeals filed by the convicts in the 2012 Nirbhaya gang rape and murder case. In both cases there was much to be desired.
As I’ve written before, Justice Misra’s judgement in Mukesh vs State (NCT of Delhi) was an incongruity, having neither the depth of reasoning nor careful thought required in handling a high profile death penalty case. It seems as though the judgement was informed more by popular opinion and less by legal reasoning as applied to the facts.
Similarly, his judgment dismissing Yakub Memon’s challenge to the rejection of the mercy petitions was based purely on a technicality, without in any way giving due attention to the merits of the rejection of the mercy petition by the President.
While a lot of show was made of allowing a past-midnight hearing to Memon’s mercy plea, the fact remains that the judgement was not exactly a shining example of judicial reasoning or analysis.
In both cases, the conclusion seemed predetermined, with verbosity ruling over careful reasoning. The procedure of law so essential to our criminal justice system was of a judge going through the motions.
2. A One-Eyed View of Free Speech
Justice Misra appears to have an opaque understanding of the concept of freedom of speech. Though Indian constitutional courts have not necessarily had the best record in so far as freedom of speech is concerned, even by the standards of previous judgements of the Supreme Court, Justice Mishra’s orders and judgements on the matter have been less than enlightening.
Not only does he not recognise claims to freedom of speech, he has possibly invented two – may be three – new and hitherto unknown grounds to limit the scope of the right itself. In Devidas Ramchandra Tuljapurkar vs State of Maharashtra, he conjured a new basis for limiting freedom of speech – to avoid criticism of “historically respected personalities”.
In Subramanian Swamy vs Union of India, he upheld the criminal defamation law on the basis that the right to reputation was superior to freedom of speech, potentially hampering even legislative efforts to repeal such a law.
While hearing a case on pre-natal diagnostic testing, he came up with the “doctrine of auto-block”, out of thin air, with little reasoning and less thought on how it may impact future laws to restrict free speech.
With dissent, free expression and any challenge to authority meeting severe reprisals, one shudders to think what will be left of our fundamental right to free speech when the Supreme Court deals with such cases under the stewardship of Justice Misra.
3. That National Anthem Order
Justice Misra’s cursory attention to either following due procedure or for substantive rights came together in the case in which his order compelled us to “show respect” for the national anthem by demanding that it be played before the screening of every film in a movie theatre.
Enough people have written about how misplaced this order is, substantively and procedurally, and how there is simply no basis in law, fact, good sense, or morality for it. It has of course found favour with the ruling dispensation which is bent on using jingoism and nationalism to divert attention from its governance shortcomings.
As the new CJI, Justice Misra will take office with a problematic track record. That is not even taking into account the fact that we never got any real closure on the suicide note written by Kalikho Pul, which alludes to two senior Supreme Court judges in controversial circumstances.
The seniority convention has meant that Justice Misra’s appointment as the CJI, barring an utterly unforeseen circumstance, was a foregone conclusion from the day he was appointed a Supreme Court judge.
He was, in effect, appointed as the CJI by the collegium when they elevated him to the Supreme Court and all the subsequent steps have only been a formality in the process. Did they make the right choice? We’ll know soon enough.