Tenure of CJI Dipak Misra: 400 days of tumult for the 'Master of Roster'

CJI Dipak Misra's tenure became infamous for the series of controversies it spawned

The 45th Chief Justice of India, Dipak Misra retired on Tuesday, October 2. Speaking at his farewell function on Monday, he said, "Our judiciary has been the strongest judiciary in the world, having the capability to handle a mind-boggling number of cases."

Justice Dipak Misra took charge as CJI at the end of August 2017 and had a tenure of 400 days in this position. Nephew of the 21st Chief Justice of India, Ranganath Misra, Dipak Misra J, had been the Chief Justice of the High Court of Delhi before he was elevated to the Supreme Court, often referred to as the most powerful apex court in the world.

CJI Misra's 400-day tenure as the head of the 'strongest judiciary in the world' was not without its share of ups and downs, though. His tenure came to be marked by an internal tussle in the top judiciary over how Supreme Court benches were formed and the CJI came under attack from the opposition. He became the first CJI in the history of the Supreme Court against whom the opposition tried to move an impeachment motion. The motion was rejected by the Vice President. 

CJI Misra's tenure can be looked at from two perspectives; the important cases he adjudicated and the controversies he faced as chief justice. 

Important cases where CJI Misra headed the bench:

Holding Aadhaar to be constitutionally valid

Retired Justice K S Puttaswamy and others filed PILs in the SC challenging validity of Aadhaar. During the course of this case, the government contended that privacy is not a fundamental right, which led to the creation of a nine-judge bench of the SC to decide on this point alone. The bench gave a unanimous verdict in August 2017 (before Justice Misra became CJI) which said that Right to Privacy was a fundamental right according to the Constitution. In January 2018 a five-judge bench headed by CJI Misra began hearing the Aadhaar case and announced the verdict in the last week of CJI Dipak Misra's tenure. The bench held Aadhaar to be constitutionally valid by a majority of 4-1 (with the CJI on the side of the majority). The bench struck down some key provisions of the Aadhaar Act and also circumscribed the extent to which Aadhaar could be demanded for delivery of services.

Striking down Section 377

In the year 2009, the Delhi High Court gave a lifeline to the LGBTQ community in the country when it read down Section 377 of the IPC. The high court ruled that Section 377 did not apply to consenting adults. In 2013, the Supreme Court held the Delhi HC order 'legally unsustainable' and said that the LGBTQ community was a minuscule community in India and in over 150 years, less than 200 people had been prosecuted under it. This 2013 verdict faced a fresh challenge in the SC after privacy was held to be a fundamental right by the SC in 2017. The CJI Misra-led bench ruled that history owed an apology to the LGBTQ persons for ostracisation and discrimination. CJI Misra said, "If it remains in its present form in the statute book, it will allow the harassment and exploitation of the LGBT community to prevail."

Allowing women of menstruating age to enter Sabarimala temple

Women between the ages of 10 and 50 were not permitted entry into the Ayyappa temple at Sabarimala in Kerala. In 1991, Kerala High Court held that the ban was in accordance with tradition and held it to be non-discriminatory under the Constitution. The SC took up the issue in 2016 after a PIL was filed and referred the case to a Constitution Bench in October 2017. A five-judge Constitution Bench headed by the CJI held that banning the entry of women into Kerala's Sabarimala temple was gender discrimination and the practice violated rights of Hindu women. Justice Indu Malhotra was the lone dissenter in this verdict.

Hadiya case

The Hadiya case became one of the most controversial cases judged by the SC in the last few years. An adult woman living in Kerala named Akhila converted to Islam in January 2016. Her father moved a habeas corpus in the high court arguing that his daughter was not being allowed to meet him. Akhila alias Hadiya appeared twice in court and refused to go with her father. In December 2016, she got married to Shefin Jahan. In May 2017, in a controversial judgment, the Kerala HC annulled this marriage and said, "A girl aged 24 is weak and vulnerable, capable of being exploited in many ways." The HC ordered Akhila alias Hadiya to be sent back to her parents. The judgment was controversial as the court conceded that Akhila was an adult and yet annulled her marriage despite there being no such mechanism in law. Shefin Jahan filed a petition in the SC challenging Kerala HC's order and in another controversial move, the SC ordered an NIA probe. In another hearing in November 2017, the SC freed Hadiya from her parents' custody. She argued that she wanted to leave with her husband. The bench led by CJI Misra allowed the 24-year-old Hadiya to resume her studies, but appointed the college principal as her guardian. In January 2018, the bench said that NIA couldn't probe and that Hadiya's choice of husband could not be questioned. The case was keenly watched and eventually, the SC set aside the Kerala HC verdict.

Judge Loya case

On December 1, 2014, Judge Loya passed away while he was presiding over the Sohrabuddin Sheikh encounter case. He was said to have died of a heart attack. Two articles published in The Caravan magazine in November 2017 raised questions about the circumstances of his death. This led to petitions being filed in the Bombay High Court and the Supreme Court merely seeking an investigation into his demise. In a move that raised eyebrows, Chief Justice of India Dipak Misra decided that all the petitions in this matter will be heard only by a bench headed by the CJI himself. All the petitions were moved to the SC. The three-judge bench dismissed the petition and sought an independent probe. The political nature of the Sohrabuddin Sheikh case, the accused, the circumstances of the judicial officer's death and the manner in which the SC pulled up all petitions to itself made this a controversial case during the tenure of the 45th CJI. 

While the Hadiya and the Judge Loya cases became controversial, they were other major controversies that marked CJI Misra's tenure. These were:

The unchallenged master of roster

In a first for Indian judiciary, four of the senior-most judges held a press conference on January 12, 2018 in what can be described as a virtual revolt against the then Chief Justice of India, Dipak Misra. Justice Chelameswar, Justice Ranjan Gogoi, Justice Lokur and Justice Kurien addressed a press conference and released a seven-page letter which they had written to the CJI. In the press conference, the four judges questioned the way cases were allocated in the SC. They demanded an independent probe into the circumstances of Judge Loya's death. On questions about whether they'd broken ranks, Justice Gogoi who has succeeded Justice Misra as CJI, said, "It’s a discharge of debt to the nation which we have done."

"Four of us have been telling the CJI Dipak Misra to correct his ways for the sake of the institution. We have spotted things in the last few months. Tried to intervene but to no avail. Twenty years from now, the nation should not say we sold our souls. We tried to collectively tell CJI Dipak Misra that certain things in the administration of the SC are not in order. Unfortunately, our efforts failed. So we are saying this before the nation," said Justice Chelameswar. He further added, "The CJI is just the first amongst equals. Nothing more, nothing less."

A petition was filed by former Law Minister Shanti Bhushan demanding that cases be allocated by a collegium rather than the CJI alone. A two-judge bench of Justices Sikri and Bhushan ruled that the CJI was the 'Master of Roster' and had all the powers to allocate cases. CJI Misra's allocation of cases came under attack from within the SC, as in none of the other collegium members was on any bench in a major or constitutional case in the SC in his tenure. CJI Misra was on the bench in all of those cases (except the 'Master of Roster' case), however. Judge Loya case's allocation only became the breaking point.

Medical college bribery scam

In the medical college bribery scam, the CBI arrested a former Justice of the Orissa High Court and five others for allowing a private medical college to enrol students despite a ban by the Supreme Court. In August 2017 a bench led by CJI Misra directed the Centre to review its order to debar medical colleges that had been found to have below-par facilities. Petitions were filed in the SC seeking an independent probe by a SIT headed by a retired CJI. Justice Chelameswar admitted the petition and ordered the setting up of a five-judge bench for hearing the petition. Dramatic scenes were witnessed in the court, as CJI Misra listed the matter in another court. CJI set-up a seven-judge bench. Two judges recused themselves and the eventual five-judge bench annulled the order passed by Justice Chelameswar. 

Trouble getting judges appointed

CJI's Misra tenure also got clouded by the lack of judicial push for appointments to higher judiciary. While the Centre returned names recommended by the Collegium for appointment to the SC, there was also the case of the Centre interfering with the appointment of a judge to the Karnataka HC. Justice Chelameswar wrote a letter condemning this interference and wanted a full court meeting on the issue.

First CJI against whom the opposition served a notice to impeach

Given CJI Misra's role in the Judge Loya case and medical college bribery scam, and the revolt by four members of the SC Collegium, seven parties served a notice in April, 2018 to impeach the CJI, accusing him of “serious misbehaviours” and “compromising the independence of the judiciary,” rendering it vulnerable to executive influence. Vice President Venkaiah Naidu rejected the impeachment motion, calling the charges insufficient. Twitter: @bhayankur