Recent events in the Supreme Court concerning Chief Justice of India (CJI) Dipak Misra indicate that he might have remodelled his approach to certain issues ever since the unprecedented events of 12 January. In a first-of-its-kind occurrence, four senior-most judges from the Supreme Court after the CJI himself – Justices Jasti Chelameswar, Ranjan Gogoi, Kurian Joseph, and Madan Lokur – held a press conference to address the crumbling administration of the judiciary.
A striking example of CJI Misra’s change in stance is the new roster system, announced on 1 February, that assigns cases to judges based on their subject matter.
The roster, which was published on the apex court’s website, places all PILs on the desk of the CJI himself rather than have these cases, which often deal with important constitutional issues, heard by ‘junior’ judges of the Court.
In continuation of his 'remodeled' stance, here is a look at some of the decisions made by the CJI has after the conference, juxtaposed with how he’s dealt with the same matters before:
Reassigning the Judge Loya Case
The press conference called by the four senior-most judges in the Supreme Court reportedly came after they attempted to have a conversation with the CJI regarding the allocation of the PILs relating to Judge Loya’s death, triggering speculation that the media address was held in light of the case.
The primary issue raised by the dissenting judges was their concern that important cases were being assigned to benches that were ‘not suitable’. Justice Gogoi seemed to confirm that this concern applied to the Loya case as well – the CJI had assigned the petitions submitted by Bandhuraj Lone and Tehseen Poonawalla on 11 January regarding the ‘mysterious’ death of Judge BH Loya, to Justice Arun Mishra, who is a relatively junior judge.
After the media briefing on 16 January, a two-judge bench comprising of Justices Arun Mishra and Mohan M Shantanagoudar heard the case, thereafter adjourning it for a week ordering that the matter be “put up before the appropriate bench.”
This sparked speculation that the two judges had recused themselves from the case following the four judges’ disgruntlement.
At the same time, judges usually expressly state that they have recused themselves from matters when doing so. By wording the order the way he did, Justice Mishra actually left the ball in the CJI’s court.
And the CJI has acted. Subsequent hearings in the case have been taken up by a different three-judge bench comprising of the CJI, and Justices Khanwilkar and Chandrachud, who have termed the matter “serious”.
This is most certainly a welcome development, given the seriousness of the issues raised in these petitions; but at the end of the day, there were no material additions of changes to the petitions. That the CJI still decided to change not only the judges hearing the case but also the number of judges, shows a change in his approach to the case which was therefore a result of other considerations – and it would not be remiss to speculate on whether the intervention by the four judges was responsible for this.
Tareek pe Tareek in Aadhaar and Related Cases
Amid the crisis in the judiciary that stemmed from the press conference, the Supreme Court on 13 January announced that a five-judge constitution bench would begin the final hearing in petitions relating to Aadhaar and eight other matters including Section 377, from 17 January. The date for the final Aadhaar hearing had already been fixed in December, when the court was hearing a petition for interim relief.
The five-judge bench does not include the four dissenting judges.
However, the other matters that were taken up for hearing by the five-judge bench had been pending in the apex court for years together, with the court adjourning the cases inconclusively after every hearing.
Delays have plagued all these cases, with little reasoning provided for why this is happening. In Aadhaar, for instance, a total of over 64 hearings have taken place since 2012, when the first Aadhaar petition was filed in the court by former Karnataka high court judge KS Puttuswamy.
Of these, six hearings were undertaken by the bench headed by the Chief Justice. Each of these hearings had ended in adjournments to a later date, except for the interim relief order on 15 December 2017 (which allowed for an extension for all linkings including Aadhaar-mobile number to 31 March 2018), with the orders hardly stretching over a page.
Similarly, the curative petitions on Section 377 have been pending in the court since 2014, when the first was filed by Naz Foundation, requesting the court to review their 2013 decision upholding criminalisation of homosexual relations.
Despite then-CJI TS Thakur agreeing to take up the matter in 2016, there had been no movement on hearing the petition, including by CJI Misra – till the day of the judges’ press conference.
On that day, not only was the Aadhaar bench fixed, but it was also decided, in unprecedented fashion, that all the other big constitutional matters would also be heard by the same bench, following the Aadhaar hearings.
While the listing of the Section 377 case was perhaps spurred by the filing of fresh petitions in the Supreme Court, the listing of the challenge to adultery law in particular (which was only admitted in December), demonstrates an urgency not seen at the apex court for some time, and is a departure from CJI Misra’s own track record with these cases.
The CJI has changed the approach taken by himself and his predecessors towards listing of these cases, injecting a much-needed sense of urgency. The extent to which the judges’ intervention played a role in this remains unclear, but there has been a very tangible change, at least for now.
Picking the Right Issues in the Hadiya Case
One of the most noticeable changes has been in the Supreme Court’s approach towards the the controversial Hadiya case. Shafin Jahan, her husband, had filed a special leave petition in the Supreme Court back in July 2017, appealing against the annulment of his marriage to Hadiya by the Kerala High Court.
Even though the core issue to be decided here was fairly clear – whether or not the High Court could question and invalidate the entirely lawful decisions of an adult woman – in August 2017, ex-CJI JS Khehar decided to allow the NIA to investigate a supposed ‘love jihad’ angle to it. Justice Misra allowed this to continue when he took over the case after becoming CJI, and didn’t change the framing of the issues to be decided by the Court.
It should be noted that during a hearing on 27 November 2017, the CJI had questioned the case of indoctrination that was being presented by the National Investigation Agency. The NIA had submitted a 100-page long report on their allegations of ‘love jihad’ , to which the CJI had observed that the larger case of indoctrination needed to be ‘de-linked’ from the case.
Despite this oral observation, in the subsequent order passed that day, the court mentioned:
We make it clear that the NIA investigation shall continue in accordance with law.
Thus, even after securing Hadiya’s release from her parents’ custody (which the High Court had sent her to), the Court was still not willing to fully accept Hadiya’s own agency. She was allowed to resume her studies, but despite her repeated pleas to be reunited with Jahan, the Court directed that she would have to stay at the college hostel, and that the State of Kerala would bear the expenses for this.
The Court’s order on the day declined to mention anything about the status of the marriage.
In the latest hearing of the case on 22 January 2018, however, Justice Misra observed that the “court cannot go into the marriage, whether the person she married is a good human being or a bad human being.” The CJI took a strong stance on the matter of Hadiya’s agency, noting that:
How can we say marriage is not valid when she says she married...she can choose independently. She is 24 years old.
These observations made by the CJI relating to Hadiya’s marital status could effectively nullify the NIA’s investigation into her marriage and the ‘love jihad’ angle – at least in terms of whether the investigation can affect the status of the marriage.
It should be kept in mind, however, that the actual order passed on the day makes no statement to this effect – though it does finally make Hadiya an official party to the case, and she can push for this in her arguments at the next hearing.
The CJI’s observation could, however, be taken as the starting point to pivot arguments in the case around the right issues – and a very public demonstration of his commitment to autonomy and agency of adult individuals (especially women).
This is not to say that the CJI didn’t hold these views previously, of course. At the same time, he has been making such statements in a more prominent way than before in recent hearings, including those on khap panchayats. On 5 February, for instance, he noted that: "Two persons marry. They are adults. The matter ends."
CJI Goes Gung-Ho on Padmaavat
After four states – Madhya Pradesh, Rajasthan, Gujarat and Haryana – banned the release of Sanjay Leela Bhansali’s magnum opus Padmaavat, the filmmakers approached the Supreme Court to intervene. The court in its 18 January order stayed the ban, effectively allowing the film to release in these states.
The CJI reportedly lashed out at the said states, questioning them on the legality of a ban.
We are concerned that a film is being banned from being exhibited…expression of a creative content...my constitutional conscience is shocked.
The bench in its order said:
It has to be borne in mind, expression of an idea by anyone through the medium of cinema which is a public medium has its own status under the Constitution and the Statute...
Further, when the governments of Madhya Pradesh and Rajasthan filed a review petition against this decision, the CJI stood firm, observing that “people must understand that there is a statutory body, and also we (the court) have passed an order.” It added that the governments must ensure law and order prevailed in their respective states.
The stance taken by the CJI in this high-profile case has been particularly strong, championing freedom of expression against all else.
Despite this being a welcome development, it does seem a little at odds with some of the the CJI's previous rulings in cases related to freedom of speech and expression, including poetic license and the effects it might have.
In Devidas Ramachandra Tuljapurkar vs State of Maharashtra (2015), Justice Misra had held that freedom of speech did not allow disrespect of “historically respected personalities” (in that case, Mahatma Gandhi).
The decision was widely criticised by prominent legal commentators for opening the door to chilling speech, and that too based on the reputation and standing of historical personalities who had not themselves (obviously) taken exception to the alleged disrespect.
In Subramaniam Swamy vs Union of India (2016), Justice Misra wrote the judgement that upheld the criminal defamation provisions in the IPC, central to which was a finding that the right to reputation was superior to freedom of speech.
In 2016, he passed an order which created the “doctrine of autoblock” – which was used to direct internet search engines to block any searches relating to pre-natal sex determination.
That same year, he also passed an order making it mandatory for the national anthem to be played in cinema halls before the screening of every movie.
The judgement in the Tuljapurkar case interestingly included an observation that any work that could cause public disorder or harm the security of the state could justifiably be curtailed on the grounds of Article 19(2) of the Constitution.
However, in the Padmaavat case, Justice Misra and his bench ordered that the concerned governments make necessary arrangements to avoid public disorder caused by fringe groups like Karni Sena, and that the public disorder concerns raised by the State governments could not be factored into the decision.
On the issue of free speech as well, therefore, it looks like the CJI has modified his approach. These changes to stances in cases and the approach of the court to various aspects of its functioning are laudable, and should go a long way to reaffirming the faith of the public in the judiciary, and the office of the CJI.
(With inputs from Vakasha Sachdev)
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