By Mythili Mishra
Chief Justice J.S. Khehar is set to resign on 27 August. Following seniority, Justice Dipak Misra is set to ascend to the helm of the Judiciary. Enrolling as an advocate in 1977, Justice Misra?s career has been an illustrious one with several landmark judgements. To get an idea of who the next Chief Justice (CJI) is, an analysis of his judgements can give invaluable insight.
On ?rarest of rare?
In May 2017, Justice Misra led the three-judge bench at the Supreme Court (SC) which confirmed capital punishment for the four convicts in the Delhi gang rape case. The convicts had gang raped and tortured a 23-year-old woman in December 2012.
The judges, rejecting the appeals filed by the convicts, said that ?The nature and manner of the crime devastated social trust and is in the rarest of rare category warranting the death penalty?. They condemned the ?brutal and demonic manner? in which the crime was committed and deemed it to be intolerable. Here Justice Misra wrote his own judgement, calling the event a ?tsunamic shock? that devastated social trust. The bench thus upheld the Delhi High Court?s order.
On capital punishment
The trial of Yakub Memon (the accused in the 1993 Mumbai blasts case) was held in the dead of the night at 3 AM in SC. Following the rejection of his mercy petition by President Pranab Mukherjee, Memon?s lawyers petitioned the SC for a stay on his execution.
Memon?s lawyer Anand Grover argued that the mercy petition rejected by the Maharashtra Governor was filed by his brother and the one rejected by President Pranab Mukherjee was filed by Memon. He thus, sought a 14-day stay on the execution, citing the 2014 judgement of Shatrughan Chauhan & Anr vs. Union Of India & Ors.
Dismissing Memon?s curative petition, the Court noted that no tenable ground raised in his plea. Hence, it deserved to be dismissed summarily. Justice Misra allegedly received death threats after delivering the judgement and sought protection for the same. Memon was executed soon afterwards.
While there is widespread opposition to the death penalty in the country, the next CJI is not averse to it. This is reflected by his views in the two aforementioned cases. His idea of ?rarest of the rare? is also intuitive, based on public morality. Brutal rapes and terrorist attacks are thus violative of the same.
On free speech and defamation
Hearing petitions by Congress Vice President Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal and Bhartiya Janata Party leader Subramanian Swamy challenging the constitutional validity of Section 499 and 500 of the Indian Penal Code (IPC), the Court held that the law does not have an adverse effect on free speech. Defamation in Indian law is both a civil and criminal offence. Under the IPC, an individual may face imprisonment up to two years for criminal defamation.
“Right to free speech is not absolute. It does not mean freedom to hurt another’s reputation which is protected under Article 21 of the Constitution”. The bench comprising of Justices Dipak Misra and P.C. Pant noted that the law falls within reasonable restrictions of the fundamental right to freedom of speech enshrined in Article 19(1)(a). The SC, in its order, upheld each argument made by the government in defence of the criminal defamation law.
Here Justice Misra is found to toe the line. Several jurists critique defamation as curbing free speech, especially political criticism. This is notable since the petitions were filed by politicians themselves. Upholding the criminality of the act and not limiting it to a civil offence, he stuck to the traditional interpretation mentioned in the Constitution, not its ideals of free speech in a broader sense. His adherence to the traditional interpretation is noteworthy as the Court can render a law ipso facto null and void if it is found to be unconstitutional.
On nationalism
To “instil a feeling within oneself of committed patriotism and nationalism“, Justices Dipak Misra and Amitava Roy ordered cinema halls across the country to play the national anthem prior to the screening of films and urged the audience to stand up in respect. “People must feel this is my country. This is my motherland… Arrey, who are you? You are an Indian first. In other countries, you respect their restrictions. In India, you do not want any restrictions?” Justice Misra remarked.
Acting on a Public Interest Litigation filed by Shyam Narayan Chouksey, the Bench condemned ?individually perceived notions of freedom?. Chouksey had complained about the misuse of the anthem in TV shows and movies. In a classic case of judicial overreach, Justice Misra not only delineated methods to curb misuse of the anthem but decided to wax eloquent on ?anti-nationalism? and impose a narrow sense of patriotism. This move must be contextualised in an India that has lately been shoving patriotism down citizens? throats. Patriotism is here equated with allegiance to the government in power and any criticism is relegated to the anti-social elements. This infringement on the private sphere of the individual came under sharp criticism. The next in line for the post of CJI seems to be closer ideologically to the government in power than many would desire.
On communalism
Justice Dipak Misra is also to head a three-judge bench to hear petitions challenging the Allahabad High Court verdict in the Ayodhya land dispute case. The disputed site holds religious significance for both Hindus and Muslims. The hearing of petitions regarding the ownership of the disputed property will begin from 11 August. Previously, the Lucknow bench of the Allahabad High Court had ordered a tripartite partition of the land among the three parties: the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla.
All eyes are now on the Supreme Court and the next Chief Justice as a dispute of faith that shook India comes back to haunt the largest democracy. The verdict of the same will decide the future of Indian secularism, as well as what the tenure of the 45th CJI will be like.
Featured Image Source: Flickr
