The 45th Chief Justice of India (CJI) Dipak Misra has just three days to go before he vanishes into history forever. Well, not quite, because unlike Justice Jasti Chelameswar, Kurien Joseph, Madan Lokur and Ranjan Gogoi, who have refused any post-retirement plums, Justice Misra will continue to earn heftily by chairing Commissions or arbitration panels to earn more than he did while in office.
The 45th CJI enjoys the ignominy of being the first to face an impeachment motion which was dropped by the Congress after the press conference held on January 12, 2018, by the four “rebel”judges who formed the collegium. Misra also declared in public that some judges had ambitions of becoming the CJI, taking a side-swipe at Justice Chelameswar who had already demitted office and spoke out in public interest rather than personal pique.
Dipak Misra also enjoys the ignominy of being the first CJI in Indian judicial history to face a charge of alleged “bench-fixing”or allotting petitions to benches of his choice with pre-determined results. This “bench-fixing”is indulged by some senior lawyers in most of the 24 high courts and occasionally the Supreme Court as well. Some senior lawyers are known to delay filing of petitions until the assignment of judges change and a bench known to have a favourable view on a certain subject is set up by the chief justice.
Top solicitor firms in Mumbai and Delhi engage senior counsel who are known to have face value with certain judges leading to the joke that “face law overrides case law.” Again, it was the 45th CJI who kept reiterating three times in succession within three months that he was the master of the roster.
This meant the CJI alone enjoyed the right to assign matters to benches of his choice after taking into consideration the expertise of a certain bench and their interest in certain areas of law. But if that were so, there was no reason for Justice Jasti Chelameshwar to feel peeved at allegedly being given inconsequential work by former CJIs T S Thakur and perhaps his successor, J S Khehar as well.
On the flip side, Justices Dipak Misra with P C Pant and Amitava Roy sat through the night to hear the last minute appeal by 1993 Bombay bomb blasts accused Yaqub Memon against his death sentence. The bench said: “If we have to stay the death warrant, it would be a travesty of justice. We do not find any merit in the writ petition.” A few hours later, Yakub Memon was escorted to the gallows and hung to death as dawn broke over an overcast sky.
In the Aadhaar case, it was Justice A K Sikri who upheld the Aadhaar Act with Dipak Misra assenting but ruled that it was not mandatory to use an Aadhaar card to open a bank account and that private firms could not be given Aadhaar data. In the Own Motion vs State case, Misra made it mandatory for the Delhi Police to upload First Information Reports on their website within 24 hours of being lodged. Today, all 10,014 rural police station and 5.025 urban police stations within India have to upload the FIRs within 24 hours of being lodged, to allow the accused and their victims easier access to justice.
The last 18 days of CJI Dipak Misra saw a flurry of activity with a bench led by him allowing live streaming of proceedings in Constitutional matters. On August 24, Misra had assented to live streaming but reserved his order. A bench led by him also negated reservation in promotions which was the brainchild of the UP government. He said that reservations in promotion would be legal only if there was sufficient data to justify that need.
A three-judge bench led by Justice Misra upheld the death sentence awarded to the four convicts of the Nirbhaya rape case on 5 May 2017. Justice Misra wrote judgement confirming the death penalty of four convicts in the brutal 2012 Delhi gang rape and murder case which shook the nation and spurred the genesis of a stringent anti-rape law. Justice Misra termed the convicts as those who “found an object for enjoyment in her… for their gross, sadistic and beastly pleasures… for the devilish manner in which they played with her dignity and identity is humanly inconceivable.”
Again, it was a Dipak Misra-led bench that settled the 120-year-old dispute over the Cauvery river, also called the Ganga of the South and considered to be the lifeline for Tamil Nadu and Karnataka. The judgment laid down important principles to the effect that rivers are a national resource and not the property of any State and the sharing of waters must be on equitable basis and further placed the requirement of drinking water at the highest pedestal.
And so while the lawyers of the Supreme Court Bar Association praise and extol the virtues of the 45th CJI in the presence of his brother judges after his last day in office, he may remember that he did not always dignify the office of the CJI because some of his actions were not always for the public good. But now, all that is history.
Olav Albuquerque holds a PhD in law and is a lawyer-cum-journalist of the Bombay high court.
