Judges, retirement and justice
Columns, Point of View

Judges, retirement and justice

By T.J.S. George

Chief Justices come and Chief Justices go, but the going of Chief Justice of India (CJI) Dipak Misra has been somewhat historic. He was, for example, the first CJI to face an impeachment petition. He was the first and only CJI against whom four Senior Judges not only had complaints but publicly expressed them by calling a press conference. This sensational spectacle took place only this January and the impeachment move was as recent as April, just six months ago. But in these few short months, Chief Justice Misra’s image went through a transformation and he retired in what looked like a blaze of glory.

What happened? Was the impeachment move a political act by the Congress because Justice Misra was seen to be siding with the BJP? Did he side with the BJP? Did he come out in his last few months with historic judgements in order to retrieve his reputation? Was he out to prove that his critics were small-minded?

No one can belittle the importance of the judgements that stand out as markers of Justice Misra’s career. In 1993, he dared to confirm the death sentence on Yakub Memon in the Mumbai bomb blast case and faced death threats as a result. He had also made passive euthanasia a reality by allowing “living wills.” Then came, in his final days, rulings that provided Constitutional space to the LGBT community, decriminalised adultery, allowed women to go to Sabarimala.

These are social subjects with little political importance. Judges can take their stand on them without worrying about their political ramifications. But two other topics on which the Misra Bench pronounced verdicts are politically sensitive — Aadhaar and Ayodhya.  The verdicts on these have not fetched universal applause. Aadhaar has made all kinds of data about citizens available to all kinds of institutions as well as the Government. The judgement has struck out a few heads but allowed data under other heads to remain.  Nor has there been any relief on the vast data already made available. What the judgement achieved was to give the impression of a progressive approach without in any way abridging the Government’s ability to use/misuse the data on citizens. It is, shall we say, a careful and clever judgement, not a people-oriented one.

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Ditto with Ayodhya. The ruling was that it is not essential for Muslims to have a mosque for them to pray. They can by tradition pray anywhere. (That is true. They can even spread a mat on a shop floor and do namaz. But when they tried to pray in the open in Gurugram in April they had Police protection but that didn’t prevent “activists” from appearing and causing tension while dispersing them.) The unwritten message in the judgement is that there is no real necessity for a new Babri Masjid to be constructed at Ayodhya. That in turn means, of course, that there is no real impediment for a new Ram temple to be constructed at the site. Again, careful and clever.

The balance sheet is that the Dipak Misra Court gave out a cluster of progressive judgements in which the ruling dispensation was not all that interested, but turned mindful of the power elite in the two cases which had a political dimension. In those two cases the verdict could only have made the party in power happy.

Did that have anything to do with the Bar Council of India  passing  a formal resolution on the eve of Justice Misra’s retirement asking him not to accept any government assignment after retirement at least for two years? This is a recurring issue. Great Judges like J.S. Verma set examples by staying retired after retirement. Chief Justice R.M. Lodha said on his retirement day that no Judge should take a post-retirement government job or Constitutional Office. But Lodha’s successor P. Sathasivam walked from the Supreme Court straight to the Raj Bhavan in Kerala. Like the earlier CJI K.G. Balakrishnan, Sathasivam said there was nothing wrong in taking up the job. Critics said it was a quid pro quo with BJP boss Amit Shah.

Arun Jaitley put it best when he said, “Pre-retirement judgements are influenced by a desire for a post-retirement job.” But that was in 2012 when he was Leader of the Opposition. Now that he is in power, his vision is not as clear as before. So, will Balakrishnan-Sathasivam kind of expediency win, or Verma-Lodha kind of integrity?  What we know is that Justice Dipak Misra’s post-retirement moves will be keenly watched, which is a good thing for the country.

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October 9, 2018

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