On 3 October, the 46th Chief Justice of India (CJI), Justice Ranjan Gogoi will commence his reign which will last for over a year. However, it is not him making headlines in the legal fraternity, but the outgoing CJI, Justice Dipak Misra. This is because in his tenure the dynamics of the Supreme Court have been tried and have stood the test of the rule of law. But more than the landmark decisions made by the Supreme Court, it is the controversies which have drawn the nation’s attention.
Ever wondered why does the National Anthem play before every screening of a movie in the theatres and why you are expected to stand up for the same as a mark of your respect for the nation? Well, we have the Supreme Court, and especially Justice Misra to thank for that as it was he who had ordered it in the matter of Shyam Narayan Chowsky vs Union of India. Logically and legally, this order did not hold water. A prudent man’s logic would lead him to question the fact as to whether standing up for the National Anthem is the only way in which one can respect one’s own country. Isn’t the act of keeping our streets clean or following the traffic rules in itself a bigger form of respecting one’s nation? Legally, Article 51A of the Indian Constitution casts a duty upon every individual to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. However, many critics have dismissed this provision being applied to standing up in cinema halls for the National Anthem as they maintain that this forms a part of ‘judicial censorship’ as it takes away our freedom to speech and expression guaranteed by Article 19(1)(a) which only stands qualified by the restrictions of any law made under Article 19(2) and not by the court of law.
A huge controversy was also sparked when he declared himself to be the ‘master of the roster’. This meant that he was the deciding authority with respect to what matters were assigned to which judge and no one could question his authority on this. There is no written law making the chief justice the master of the roster, but it is, in fact, a constitutional convention which is as good as the written law. But, the problem in his case was his interest in the matter being adjudicated. It had all started when the CBI had arrested the retired judge of the Orissa High Court, Justice IM Quddusi regarding a medical college bribery scam. This scam also featured the name of Justice Misra.
When a petition on it was filed, a division bench (2-judge bench) headed by Justice Jasti Chelameswar termed the allegations “grave and serious” and referred the matter to be decided by a bench constituted by five senior-most judges, excluding the then CJI, Justice Misra. But, the following day, the then CJI formed a Constitutional Bench (5-judge bench) and annulled the order of Justice Chelameswar on the ground that the CJI is the master of the roster, and the second senior judge (Justice Chelameswar) could not have constituted a bench to hear the matter. Although, this decision can be said to be good law, due to the involvement of Justice Misra in deciding his power it goes against the Latin maxim- nemo judex in sua causa which translates to ‘no one can be a judge in his own case’.
The correct and proper way to decide this would have been if Justice Misra would have allowed a Constitutional Bench, excluding the first two judges of the Supreme Court, to adjudicate as to whether only the chief justice is the master of the roster or not. Justice Misra also faced an impeachment motion against him for this but it was rejected by the Rajya Sabha chairman.
However, all these controversies pale in comparison to the unprecedented event that took place on 12 January 2018 where the top four seniormost judges of the Supreme Court after the CJI including Justice Chelameswar, Justice Gogoi, Justice Madan Lokur and Justice Kurian Joseph, held a media conference and appealed to the nation to save the Supreme Court in order to save the democratic framework of the country. In the interview, Justice Chelameswar was reported saying that “the administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months. We owe a responsibility to the institution and the nation. Our efforts have failed in convincing CJI to take steps to protect the institution.” However, this internal conflict was soon placated as there was no follow up on this issue.
Despite, these rough patches, we should not take away Justice Misra’s contribution to the legal fraternity as well to the nation. The last week of his tenure was probably the best week that the Indian legal community has seen in terms of the rights that were guaranteed to the citizens. The decriminalisation of homosexuality, the allowance of women in the Sabarimala temple, the striking down of Section 497 which is adultery, the live streaming of cases of constitutional importance, the upholding of Aadhaar, the right to die with dignity as well as Hadiya and Khap panchayat judgments focusing on individual rights are few of the important matters that were decided by him. Some of them have changed the very landscape of legal jurisprudence of India for the good. However, it won’t be amiss to say that his name will be remembered in posterity more for the controversies, and less for these landmark judgments.
Raghav Pandey is an assistant professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai.