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The Darkest Hour

Dipak Misra's shadow over the Supreme Court

By ATUL DEV | 1 July 2018

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IT WAS COMMON FOR JAYANTA KUMAR DAS to find bundles of documents on the doorstep of his house in Puri, Odisha. Having spent two decades in the Indian Air Force, Das retired as a sergeant, in 2001, aged 39. He started brokering land deals, which exposed him to a lot of corruption. When the Right to Information Act was passed, in 2005, Das felt enabled. At the turn of the decade, he was scratching away at what came to be called the Odisha chit-fund scam. His name began appearing in the press as the scandal surfaced. “So people know me,” Das told me recently. “And because they know that I work honestly, they send me information.” Sometimes his dog chewed documents up before he could open the door to find them.

One bulk of papers arrived by post on 11 August 2016, from the city of Cuttack. These contained the interim report in an inquiry by the Central Bureau of Investigation, carried out on orders of the Orissa High Court, which named public servants who had been indicted for acquiring government land by fraudulent means.

On page 30, under the specifics of lease case number 588/79, Das spotted the name “Deepak Mishra.” He managed to locate a three-decade-old order by the additional district magistrate of Cuttack in State vs Sri Deepak Mishra—lease revision case number 238 of the year 1984. With the stated intention of raising a fodder farm, the defendant had applied to procure about three acres of government land in Cuttack, under a scheme designed to uplift the economically disadvantaged. To prove his eligibility, he swore, in an affidavit, that he came from a Brahmin family that owned no land. This was a lie, and the defendant’s lease on the land was cancelled. The additional district magistrate was “satisfied that the lessee had obtained lease by misrepresentation and fraud.”

The CBI inquiry found that the tehsildar in Cuttack had only corrected the records for the land in January 2012. This meant that for 26 years after the additional district magistrate’s order, the defendant had continued to hold the land in question. Much had changed for the defendant in those 26 years. In 1984, Deepak Mishra was a lawyer practising in the Orissa High Court. By 2012, having been appointed a judge, seen his elevation to the Orissa High Court and served as the chief justice of the Patna and Delhi High Courts—and having changed the spelling of his name to Dipak Misra along the way—he was a justice of the Supreme Court.

Members of the higher judiciary are expected to have spotless pasts, and the process of their appointment is meant to ensure that they do. In light of what Das had learnt, Misra’s trajectory exposed consistent lapses in due diligence on the part of multiple state and central governments, whose job it is to do background checks on prospective judges and justices, and the collegium system that has governed all appointments to the higher judiciary since 1993.

Could a person indicted for fraud be a justice of the Supreme Court? Worse, Misra was not an ordinary justice. Under the convention of seniority that governs rank in the Supreme Court, he was in line to lead the republic’s highest court. Could a person indicted for fraud become the Chief Justice of India?

Das assumed that Misra’s transgression had simply been forgotten. In September 2016, he wrote in a letter petition to the serving CJI, TS Thakur, saying that, as “a citizen of India, the constitution has given me some responsibility under Article 51A hence it is my duty to expose it.” Das asked Thakur to take appropriate action, and dispatched copies of the petition to President Pranab Mukherjee, Prime Minister Narendra Modi, the law and justice minister, Ravi Shankar Prasad, and Supreme Court justices on the collegium with Thakur at the time. He also emailed his complaint to more than 700 members of the Rajya Sabha and Lok Sabha—everyone whose email address he was able to locate.

Two months passed, and nothing happened.

In November 2016, Das sent another letter to Thakur, reminding the CJI of his complaint, and again copied it to other members of the collegium. There was no reply.

A day after JS Khehar replaced Thakur as the CJI, in early January 2017, Das sent Khehar another reminder. More than a week passed, and still nothing moved. Das wrote to the local postmaster asking if his letters were being delivered. They were. In another letter, in February, Das reminded the collegium—at this point comprising Khehar, Chelameswar, Gogoi and Madan Lokur—of the time that had passed since his first complaint: 146 days.

Meanwhile, a new complication had surfaced. The order for the CBI inquiry had come from a bench of the Orissa High Court headed by the judge BP Das. In an interview in December 2016, the judge, now retired, alleged that in 2012, three months after he passed the order, Misra had opposed his elevation to the office of the chief justice of the Punjab and Haryana High Court. “The link and presumption is not unfounded,” he said. Since the two judges had never worked together, Misra “had no idea about my performance as a judge, but he on his own wrote to the collegium opposing my appointment.”

Jayanta Das’s efforts elicited some stern responses. Adish Aggarwala, the president of the International Council of Jurists, wrote to the new CJI, Khehar, asking for a probe. The former law minister Shanti Bhushan wrote an article on Misra titled, “Should a judge with a serious moral flaw become the Chief Justice of India?” But by and large the legal fraternity—like the judiciary, executive and legislature—did what it always has in cases of apparent judicial corruption: it kept its silence.

Ensconced in the mores of Indian judicial culture, Dipak Misra sat in Durbar Hall at Rashtrapati Bhavan on 27 August 2017. With a brief ceremony, and a promise to execute the duties of his new office “without fear or favour,” he was appointed the Chief Justice of India. Modi was in the room, as were Khehar and the law minister, Prasad. Senior figures of both the government and the opposition looked on, alongside high-ranking bureaucrats. Numerous serving and retired judges attended, as did several eminent jurists. Virtually all of them had received and ignored Das’s complaint. Misra signed his oath, and shook hands with the president. Everyone clapped.

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Atul Dev is a staff writer at The Caravan. 

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