Dipak Misra is no longer the Chief Justice of India.
It would be fair to say that his chief justiceship has been controversial. From the famous judges’ press-conference, to the “master of the roster” question and the impeachment effort, a significant part of the controversy has been political. As CJI, Misra constituted a bench to hear a case that indirectly implicated himself in criminal conduct, thus violating the cardinal “no person shall be a judge in her own cause” principle. He has also presided over benches that have pronounced judgments dealing with the powers of the Chief Justice, while he was Chief Justice. There have been issues, as well, with disposing of cases without issuing notice or pleadings (Judge Loya), granting restitution in bail petitions (Unitech), or the quashing of a chargesheet against M.S. Dhoni in Andhra Pradesh in a challenge against a complaint registered in Karnataka.
In this assessment of his tenure, however, I will not discuss any of that. The political legacy that CJI Misra leaves behind is being debated, and will be debated in the years to come. Nor shall I discuss his judgments in terms of their outcomes: it will be for future scholars to place his judgment in Navtej Johar and his signing on to the majority in Aadhaar alongside each other, and ask themselves how they stack up.
What I will do is situate CJI Misra in the broader context of his role as a judge in a constitutional court. 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.” This tradition, which (arguably) had its beginnings in the 1980s, calls upon judges to use their power to do (what they perceive to be) “substantive justice”, even where the legal system has itself put checks and constraints upon the exercise of that power. These checks – statutory texts, judicial precedent, the separation of powers, doctrines of jurisdiction and maintainability, and above all, the giving of reasons for an outcome – are treated as inconveniences to be negotiated rather than principles to be respected. And all of this is justified by nice-sounding – but intellectually vapid – catchphrases such as “procedure is the handmaiden of justice.”
Chief Justice Misra’s tenure represents the high-water mark of this tradition. In his judgments, legal constraints are devalued to such an extent that we reach a near-vanishing point. 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.
I should clarify – once again – that this is not a dispute over outcomes. I find Chief Justice Misra’s judicial instinct on social and gender rights – as reflected by his judgments in 377, adultery and Sabarimala – chimes with my own. At the same time, I disagree strongly with his instinct on free speech. But that is not the point.
The point is whether the manner in which he reaches these outcomes – which we may agree or disagree with – is consistent with a democratic set-up that prizes the rule of law over the rule of judges. I believe that it is not, and I shall attempt to demonstrate that in the examples that follow.
Ignoring statutory text: The Make-Up Artists case
In November 2014, Misra struck down a clause of the Cine Costume Make-Up Artists and Hair Dressers Association bye-laws that prohibited women from becoming members. This was immediately hailed as a landmark judgment for gender rights. Importantly, however, the Association was a private body, that had the right to frame its own regulations. To strike down the bye-laws, therefore, Justice Misra had to find a way of holding that the constitutional norms of Articles 14, 15(1) and 21 were applicable even between private parties.
How did Justice Misra do this? He noted that the Trade Unions Act – under which the association was registered – required that “any person who has attained the age of 15 years” was entitled to be a member of a registered Trade Union. He then argued that as the Act did not make a distinction between men and women, the association could not – through its bye-laws – introduce such a distinction.
This is impeccable reasoning, except for one fact. Section 21 of the Trade Unions Act – which Justice Misra quoted and relied upon – is about the rights of minors to membership of Trade Unions, and the full text states:
“Any person who has attained the age of 15 years may be a member of a registered Trade Union subject to any rules of the Trade Union to the contrary, and may, subject as aforesaid, enjoy all the rights of a member.” (emphasis added)
As you can see, the italicised portion knocks the bottom out of the argument. It is not that “any person who has attained the age of 14 years” is entitled to membership of any trade union; her entitlement is subject to the rules of the trade union, which, of course, were what the respondents were relying upon in the Make-Up Artists Case.
There is a larger debate to be had about private discrimination, especially when that discrimination is carried out by associations that have near-monopoly power in an industry. Justice Misra could very well have reached his conclusion on constitutionally justifiable grounds. But he didn’t do so. Instead, he took a statutory text, relied upon the part that suited him, snipped out the part that didn’t, and got his answer. That will not do.
Ignoring precedent: The Devidas Tuljapurkar case
In Devidas Tuljapurkar, Justice Misra was considering a plea for quashing charges of obscenity with respect to a poem called ‘Gandhi Mala Bhetala’ (‘I Met Gandhi’), published in 1994 and meant for private circulation among the employees of the All India Bank Association (the SLP was filed by the publisher). Justice Misra rejected the plea, and in doing so, invented an entirely new standard for adjudicating obscenity claims: the threshold, he ruled, would be higher in the case of “historically respectable personalities.”
I use the word “invented” with due care. Where did the phrase “historically respectable personalities” pop up from? It is not there in Section 292 of the Indian Penal Code, which defines obscenity. It is not there in any Indian judgment interpreting the meaning of “obscenity.” As I pointed out at the time, it does not flow from the logic of the section or from the restrictions on free speech in the constitution – indeed, it is at stark odds with both. The “historically respectable personalities” test had no source at all, outside the imagination of Justice Misra.
This is not a light matter. The freedom of expression is a crucially important constitutional right. Its contours have been carefully delineated in the constitutional text, and restrictions have been imposed. Over the years, courts have been engaged in a process of interpreting the right and its restrictions. Court judgments on the point have a huge impact in terms of self-censorship and the chilling effect. But in inventing a new restriction altogether – and then omitting to define it with any degree of precision – Justice Misra seemed oblivious to all of this.
Ignoring legal logic: The criminal defamation judgment
In 2016, Justice Misra upheld the constitutional validity of Section 499 of the Indian Penal Code. There are multiple things profoundly wrong with this judgment, not least the invention of a wholly new ground – “constitutional fraternity” – as a basis for restricting speech. But here I want to focus on one specific aspect.
It was pointed out to the court that in R. Rajagopal vs State of Tamil Nadu, the Supreme Court had held that strict-liability defamation in civil law was too stringent a restriction upon free speech. To put it in simpler language, the civil law offence of defamation kicked in if it was established that a defamatory statement had been made, and the only defences open to the defendant was to show that it was true, or a fair comment, or covered by legal privilege. What slipped through the cracks was, for example, an honest mistake: a statement that had been made after due care and reasonable checking of facts, but which nonetheless turned out to be false. In Rajagopal, the Supreme Court found that this was inconsistent with the constitution, and “read in” the NYT vs Sullivan standard of actual malice: that is, as far as public figures were concerned, a statement would have to be false and made with actual malice (i.e., knowing that it was false or having a reckless disregard for its truth or falsity) for civil defamation to apply.
- 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.
Now, as it was pointed out to the court, this set up an irreconcilable contradiction with Section 499 of the IPC, which not only retained the strict liability form of defamation in the criminal context, but also had fewer defences (an accused had to show not only that the statement was true, but true and in the public interest). In other words, the same legal standard that the Supreme Court had ruled unconstitutional in the context of civil defamation continued to hold the field for criminal defamation, and then some. As a matter of simple legal logic, therefore, the court had to at least bring the two on par.
Justice Misra’s response to this was … to ignore it altogether. It is a 268-page judgment that ranges across wide swathes of law and life, but on the one point that is not even a question of legal argument, but just one of logic (and therefore unanswerable), it chooses to remain silent.
Ignoring maintainability: The national anthem case
In late-2016, Justice Misra passed an “interim order” in a PIL, directing that all cinema halls play the national anthem before every movie. Once again, there are many things that were wrong with this order: from the fact that he had adjudicated a very similar claim (brought by the same petitioner) while he was a judge of the Madhya Pradesh high court, to the fact that the order grossly violated both Article 19(1)(a), and the separation of powers, and effectively involved the court in doing something it did not have the power to do: censor speech directly.
But all that apart, there was one very basic point that Justice Misra ignored entirely before passing this “interim order” (that ended up lasting for more than a year). Article 32 of the constitution states, in relevant part:
“The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” (emphasis added)
It is therefore beyond cavil that when you are moving an Article 32 petition (and PILs fall within that category), you must show that there is a violation of a fundamental right under Part III. In the PIL era, you are now entitled to move the court to enforce somebody else’s rights on their behalf, but that does not exempt you from the burden of showing that there exists a right in the first place. And this straightforward point has been recognised in multiple Supreme Court judgments, which make it clear that for a PIL to be maintainable, there must be a right under Part III that is impacted.
What fundamental right under Part III was the PIL-petitioner agitating in the national anthem case? It is obvious that there is none. And Justice Misra’s interim order did not even begin to address that rather basic point, focusing instead on “fundamental duties” – which, as a matter of constitutional text, are not part of the “rights conferred by this Part” that Article 32 talks about.
Interestingly, midway through the hearings, while the interim order was already in force, this point was grasped by Rakesh Dwivedi, the senior counsel for the petitioner, the first time that he was engaged to appear in the case. Dwivedi promptly had the petitioner amend his pleadings, and at the next date, present a case that the Prevention of Insults to National Honour Act violated Article 14, because it did not protect the national anthem as much as it protected the national flag. I think that that is a bizarre argument, but at least it is an argument for establishing maintainability in the first place. But even that threshold requirement was not deemed necessary by Justice Misra before passing his slew of orders that would have a direct impact on freedom of speech and expression.
Ignoring jurisdiction and the separation of powers: Meesha
Meesha is a case that is perhaps most characteristic of his tenure as CJI: big words, grandstanding and empty reasoning. The facts of Meesha were that novel serialised in Kerala generated some controversy. Certain groups approached the state government and attempted to have the book banned. The state government refused. A PIL was then filed to have the book banned. With dazzling alacrity, Chief Justice Misra allowed a special mentioning, listed the case for hearing, reserved orders, and then passed a judgment dismissing the PIL.
The problem, however, is that he had no power to do most of this. Our constitutional scheme is a very carefully crafted one, when it comes to free speech and other civil rights. It effectively sets up a three-step procedure: first, there must exist a law that sets out the circumstances under which speech can be restricted. Secondly, the executive implements that law. And thirdly, the court can review either legislative or executive action for compliance with the constitution. This is a multi-layered set of safeguards, which ensures that before speech is censored finally, there are a number of checks and balances.
- In Chief Justice Misra’s judgments, text does not matter. Precedent does not matter. Jurisdiction does not matter. Separation of powers does not matter. All of this is subsumed within one overarching, totalising vision of his sense of justice.
In the case of book bans, the system works like this. The relevant law is the Code of Criminal Procedure. The CrPC grants to state governments the power to ban books if certain specific laws have been violated. And this ban, in turn, can be reviewed by a three-judge bench of the high court, on an application from an interested party (with a further appeal to the SC). What the constitution does not permit is for the Supreme Court to unilaterally ban a book. And if the Supreme Court doesn’t have the power to ban a book, then it stands to reason that it cannot admit or hear a PIL for that purpose.
This careful constitutional scheme was torn to shreds by Chief Justice Misra in Meesha, simultaneously creating an entirely new – and dangerous – jurisdiction for the court: where any interloper could show up to any high court or the Supreme Court with a PIL, asking for a book to be banned, and try his luck.
Ignoring procedure: Navtej Johar
It is trite to say that the Section 377 judgment was a welcome one. But a look at how it came about reveals, on more than one occasion, legally problematic conduct by Misra, acting in his capacity as Chief Justice.
First – technically, Koushal vs Naz Foundation was not yet over. The curative petitions in that case were still pending. But while the older proceedings were still in progress, Chief Justice Misra admitted a lis on an identical issue (the constitutional validity of Section 377), and had it referred to a constitution bench. It will not do to say that the pending curatives were PILs, while Navtej Johar was a writ petition. The point is that effectively, the court admitted a petition asking for the reconsideration of Koushal before the Koushal proceedings had even attained finality. There was a correct way to do this, which was easily available: he could have listed the curatives, disposed them off, and then admitted Navtej Johar. He did not do so.
Secondly, Navtej Johar was referred to a constitution bench on the very same day and in the same hearing that it was admitted. Surely referral to a constitution bench is not something that ought to be done in such a cavalier fashion? Surely the question of whether a matter involves a substantial question of law pertaining to the interpretation of the constitution (the requirement of a referral) has to be separately contested?
And thirdly, the initial listing of cases had Navtej Johar as fourth on the list, to be heard after Aadhaar, adultery and Sabarimala. Aadhaar took up the entire first half of the year, and ended just before the vacations. On the Thursday after the court reopened, the list was juggled, and Navtej Johar was bumped up to the top of the list for the coming Tuesday. This effectively blindsided the state, whose counsel protested on Tuesday that four days was too short a time to prepare for a case of this magnitude. Expectedly, Chief Justice Misra gave short shrift to this, and went ahead with the hearing.
Koushal vs Naz was a horrendous decision, and deserved to be overturned at the earliest. But it is unclear to me why that needed to be done at the cost of inverting some very basic procedural requirements, especially when – at most – they would have caused nothing more than a few weeks’ delay.
Ignoring intra-court discipline
On two distinct occasions, Misra, using his powers as Chief Justice, has set himself up as the head of an intra-court appeals division. He did this first on the issue of the Memorandum of Procedure for judicial appointments: after a different, two-judge bench had issued notice on the case, with respect to the government delaying the MoP, the case was transferred to Chief Justice Misra’s court, and promptly dismissed. As Bar & Bench wrote: “An intra-court appeal is unheard of in the Supreme Court and it is unclear on what ground the two cases were transferred to a 3-judge bench when the 2-judge bench had passed no order to that effect.”
There are other glaring examples of Chief Justice Misra ends-without-means constitutional jurisprudence: his attempts to introduce the doctrine of “auto-block” on the internet (before better sense prevailed), his attempt to invent further restrictions to free speech on grounds of “constitutional compassion”, and so on. But the instances given above are sufficient, I feel, to make the point.
As I said at the outset, this is not an assessment of Chief Justice Misra’s substantive jurisprudence. Over the past five years, I have written about almost all of his constitutional judgments, praising some and criticising others. And at a moment when emotions are running high after the judgments delivered in his last week, it is probably too soon to engage in a dispassionate analysis of a judicial career that includes 377, adultery and Sabarimala on the one hand, Aadhaar, Master-of-the-Roster and all the free speech judgments on the other, takes into account other controversial cases such as Judge Loya, Bhima-Koregaon, the Uttarakhand President’s Rule case, and Arunachal, and lastly, examines Chief Justice Misra’s administrative role in the allocation of cases.
But it is never too soon, I think, to make this simple point: in constitutional matters, Chief Justice Misra has taken the trope of the crusading judge, who roams the field seeking out his own vision of truth, justice and beauty, to its logical end-point. I am not here saying that his judgments are motivated by extraneous considerations: no doubt he sincerely believes that he has been doing justice according to the constitution. But in the course of doing that justice, every institutional check that has been put into place to ensure that we have a rule of law instead of a rule by judges, has been devalued to its vanishing point. 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. All of this is subsumed within one overarching, totalising vision of his sense of justice, topped off with language that is opaque, turgid and impenetrable.
It would be unfair to blame Chief Justice Misra for this entirely, since he is after all, a product of a system that has systematically devalued these checks and balances, and where academics have contributed to that devaluing by castigating them as relics of “Anglo-Saxon jurisprudence.” But ultimately, it is these relics of “Anglo-Saxon jurisprudence” that stand between us and the tyranny of the unelected. The unchecked expansion of judicial power can only lead to a situation where judges feel less and less accountable to constitutional checks, and feel less and less inclined towards justifying their judgments on constitutional grounds.
Dipak Misra’s tenure reveals that truth in its starkest form.
Gautam Bhatia is a Delhi-based lawyer and author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution
An earlier version of this article appeared on the author’s blog.