DNA Edit: Curate’s egg – CJI Dipak Misra’s mixed legacy

The contribution of  Justice Dipak Misra, who retired as the Chief  Justice of India on Monday, is certain to be debated long after he has faded from the limelight. The judgments of the benches over which he presided, particularly in his last days as the CJI, may be debated with more than academic interest, for these have infused new – and controversial – content to the ongoing political, social and religious discourses.  Many of the cases are the subject of intensive political discussions as they involve not only issues of democracy, dissent, privacy and fundamental rights but, perhaps, the very lives of activists who are now in the dock. The judgments delivered by Justice Misra, in many instances,  are unlikely to be conclusive in that there may be further litigation as a consequence of his verdict on, for example, Aadhaar or women being allowed access to the Sabarimala shrine. Most of the cases flowing from the response to his judgments may not affect the perception of his legacy. 

However, one majority judgment delivered by Justice Misra is already on judicial test and this is the case involving the detention of the activists on the Bhima-Koregaon issue. The question of whether these activists were actually involved in efforts to subvert a lawfully elected government or such charges were a fig leaf to cover up the state’s suppression of democratic dissent have already been raised in these editorial columns. The issue remains unresolved. More than the majority order handed down by CJI Misra it is the spirit of the dissenting judgment of Justice D Y Chandrachud that is reflected in the Delhi High Court, on Monday, ordering the release of Gautam Navlakha – one of the five activists kept under house arrest.  Only on its previous working day (September 28), the Supreme Court had refused to interfere with the arrests of the five rights activists and extended their house arrest by four more weeks. The 2-1 majority judgment also rejected the petition for a probe by a special investigation team (SIT). 

Justice Chandrachud, did not agree with the majority verdict of CJI Misra and Justice AM Khanwilkar. In his dissenting judgment, Chandrachud held the arrests of the five accused as “an attempt by the state to muzzle dissent, and dissent is symbol of a vibrant democracy.” Liberty cherished by the Constitution would have no meaning if persecution of the five activists is allowed without proper investigation, he added. The Delhi High Court order of October 1 is a reminder that it might be premature to come to any definitive conclusion about CJI Misra’s legacy. Be that as it may, every CJI is conscious of the legacy he would leave behind and CJI Misra is no exception to the rule of striving for a legacy. In doing so, he has risen way above the expectations of sceptics and critics, particularly those who went so far as to call for his impeachment by Parliament – a move which failed and thankfully so, for had it gone any further, it would have hurt not only an individual but undermined confidence in the judiciary. That said, CJI Misra deserves kudos for his judgment on Aadhaar. He upheld the constitutional validity of the unique ID while, at the same time, he defanged it of its undesirable and intrusive attributes. 

However, the debate on Aadhaar is likely to continue. Equally, he has decommunalised the Mandir-Masjid case by letting it go further as a case in which what is to be decided is the title suit and not whether the Muslims need a mosque to pray. He did this while upholding a 1994 judgment, which held that a mosque is not integral to Islam. His judgments on decriminalising homosexuality and adultery,  allowing entry of women of all ages into the sanctum sanctorum of the Sabarimala temple reinforce equality, constitutional morality and liberal values. His verdict allowing courts to livestream judicial proceedings breaks new ground that would be welcomed by all sections. 2018 has been a momentous year replete with milestones for Justice Misra who became CJI on August 28, 2017. The year began on a high note when he stayed the ban on the film Padmaavat and asked state governments to ensure that the film was released and ended on a series of higher notes. He could not have asked for more.