28 August 2017 National New Chief Justice

Just Leeward Of Liberal...

Justice Dipak Misra will be the 45th CJI. He carries a grand family legacy and a baggage of controversies.
Just Leeward Of Liberal...
Photograph by PTI
Just Leeward Of Liberal...

There is more to Justice Dipak Misra beyond grandiloquence, florid verdicts and ‘constitutional patriotism’ that have led him to swing between being a darling of the liberals and, at other times, a right-wingers’ icon. With a family lineage studded with well-known politicians and jurists, the next Chief Justice of India has come a long way from a small town in the country’s east—via the Orissa bar and multiple high court benches.

His occasionally unpopular rulings have not entirely affected his relations with the bar—the judge finds popularity among several junior lawyers because he listens to them and often gives relief. Parallely, the judge has little patience for authorities who do not comply with the apex court’s decrees. Lawyer-politician Abhishek Manu Singhvi notes the rarity of talent intersecting with temperament, saying Justice Misra is capable of bringing both to the table­—forcefully. “His positive style of handling situations lightens up tension-ridden and acrimonious matters that involve high stakes,” notes the Congress leader, a former add­itional soli­citor-general. “They thus move tow­ards easier solutions.”

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Justice Misra, 63, studied in an Oriya-medium school in his coastal hometown abutting the sprawling Chilika Lake, but taught himself English along the way. “That is why he tries to make up with a disproportionate degree of eloquence,” says a lawyer about Justice Misra, who is known for quoting Shakespeare freq­uently in his judgements. “He is extr­emely well-read and devotes a lot of time to both literature and law books.”

Godabarish Vidyapith, from where Justice Misra did his primary studies at Banpur, was named after its founder, a legendary freedom fighter and little Dipak’s grandfather. Godabarish Misra (1886-1956) was one of the Panchasa­kha—a league of friends considered the ‘five architects of modern Orissa’—and had also started the state chapter of the Congress. In 1928, The Samaja, Orissa’s pioneering daily floated in 1919, lost its Gandhian founder-editor Gopabandhu Das, following which Godabarish took over. He ran it for two years, and later became one of the first education ministers of Orissa in 1941—in the pre-­inde­pe­ndence council of ministers (Orissa was carved out of Bengal Presi­dency only in 1936). In that role, he played a key role in setting up Utkal University in 1943.

Godabarish had three sons. The eldest, Lokanath Misra, moved to Delhi and became a prominent politician of the Swatantra Party (and later the Janata Party). He was nominated to the Rajya Sabha more than once and went on to serve as governor to Nagaland and Assam. Lokanath’s son, Pinaki Misra, is a New Delhi-based senior advocate and three-term Lok Sabha MP from the Biju Janata Dal, which he joined after a stint with the Congress. The lawyer and his judge-cousin are not considered close, having grown up in different cities.

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The second son, Raghunath Misra, Dip­ak’s father, was a Congress MLA from Banpur. And Godabarish’s youngest son, Ranganath, practised law in Cuttack till he was made a judge of the Orissa High Court. The late Justice Ran­ganath Misra went on to be a Supreme Court judge for eight years till retirement, serving the last 14 months as the 21st Chief Justice of India. Today, his nephew is poised to serve an identical stint of 14 months as the 45th CJI—from August 28—taking his total SC tenure to seven years.

That is not all they share. As a freshly enr­olled lawyer, Dipak Misra joined the chambers of his uncle in 1977. When Ranga­nath Misra was elevated to the Orissa HC, his chamber passed on to R.C. Patnaik (who also went on to become an SC judge). From Patnaik, the chamber (and clients) passed to Ranganath’s older son, Devanand Misra, till his premature death, when Dipak Misra took over. Justice Misra was elevated to the Orissa HC as an add­itional judge in 1996 and, within a few months, opted for a transfer to Madhya Pradesh, where he remai­ned till 2009.

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Mohan Gopal, a former director of the National Judicial Academy in Bho­pal, is all praise for Justice Misra’s “academic bent of mind” that has helped him play “a very positive and important role” in the development of national and state judicial education. “He prioritised listening to legal scholars, displayed interest in legal academics and contributed to the success and content of judicial academies,” Gopal notes. “He continued to be supportive of judicial and legal education as chief justice of the Patna and Delhi High Courts as well as an SC judge”.

Justice Misra got a liberal’s image, banning Jallikattu, but next he made the anthem mandatory in cinema halls.

Misra’s performance as Patna High Court chief justice impressed top jurist S.H. Kapadia. Two weeks after Justice Kapadia took charge as the CJI, Justice Misra was transferred to the Delhi HC. It paved the way for his elevation to the Supreme Court in 2011, when Kapadia was still the CJI. Justice Misra’s father Raghunath was also a Sanskrit scholar who taught yoga and wrote a book on it. He was known as a dev­out Hindu who successfully campaigned against ritual animal sacrifice in local temples. In early 2016, a bench led by Justice Misra too banned Jallikattu in Tamil Nadu, agreeing with the animal rights activists’ argument that the torture of bulls prior to the traditional sport was “inherently cruel”.

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That streak of liberal-mindedness, tho­ugh, was blurred by two other judgements that followed soon: mandatory playing of the national ant­hem at cinemas and upholding the constitutionality of the 150-year-old law on criminal defamation. The second elicited sharp res­ponses from several journalists and certain politicians. “It was a frustrating experience,” says a senior advocate who had appeared in the matter. “Justice Misra had a chance to have his day in the sun when he heard the criminal defamation case. Many of us tried to convi­nce him of the needlessness of the criminal provision, wanting it to be dropped when a civil rem­edy exists.” A widely-­read judgement, it attra­cted flak from grammar pundits, who picked at the flowery language and sentences that outdid paragraphs in their length. A close observer attributes this to a Napoleon Syndr­ome due to Misra’s short stature along with the struggle of self-learning English.

But the most debated of judgements was the one on the national anthem, which subsequently underwent modifications. It was a repeat of a pronouncement he had delivered 10 years ago in Madhya Pradesh HC—a display of ultra-­nationalism during the UPA-I rule.

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“The court should not engage with iss­ues such as nationalism and legislate idealism and patriotism for the country,” says Mohan Gopal. “The Constitution has emerged from the freedom movement and the Supreme Court should be promoting constitutionalism­—and not constitutional patriotism. See, the first means limited power for the state.”

Then there is a final judgement on 1993 Bombay serial bomb blasts convict Yakub Memon, which took the country by storm in monsoon 2015. On July 28 that year, with all other avenues exha­usted, the defence lawyers made a last-ditch attempt for Memon. In high, unprecedented drama, the chief justice reconvened—at 2 in the morning—a bench led by Justice Misra, who dictated the judgement. Some two hours later, Memon was hanged until death. “There was no reason it couldn’t have stayed,” says Gopal. “There, I disagree with the bench and not the court, as a matter of legal principle.”

A month before the announcement of his appointment as the CJI, graft allegations against Justice Misra surfaced during a corruption probe into allegations against two HC judges in Orissa. It was an old case, but drew a strong, hard-h­itting letter from veteran lawyer Shanti Bhushan, asking, “Should such a person become the CJI, even if he is the senior-­most judge? Seniority is an important principle, though not the only principle for appointing the chief justice.” Bhu­shan relied on a writ filed in Orissa that Justice Misra had misrepresented facts while seeking allotment of agricultural land in 1979. The other allegation was based on a purported August 2016 suicide note of former Arunachal Pradesh CM Kalikho Pul, in which he had named other judges and lawyers.

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Singhvi says he finds it “utterly distasteful that allegations are nowadays repeatedly made by all and sundry, including, unfortunately, by senior members of the bar who should know better, just before elevation to the highest posts” at the end of a long career. “This practice has bec­ome embedded. Old/stale allegations should not be rev­ived as if to amb­ush a man at the acme of his career,” he adds.

What of the complainant? Jayant Kumar Das has since been sentenced to six years in India’s first conviction in a cyber pornography case where he was found to have used a fake ID to make obscene remarks against a journalist’s wife on a porn site. One of the Orissa HC judges being probed is Justice Indrajit Mohanty, the first puisne judge who’s described by that state’s lawyers as one of the best judges the HC has produced.

The National Lawyers’ Campaign for Judicial Reforms and Transparency shot off letters to other constitutional functionaries in protest. The lawyers’ group seemed to favour another judge’s app­ointment as the next CJI. Punjab MP Harinder Khalsa unsuccessfully filed a writ before the Delhi HC challenging the recommendation of Justice Misra as the next CJI.  Whatever you may think about him, you will definitely think of Justice Misra every time you go to a theatre in India to watch a film.

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