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.
MISRA IS NOT THE FIRST CJI, or the first Supreme Court justice, to face allegations of wrongdoing. In 2010, the former law minister Shanti Bhushan gave the Supreme Court an affidavit where he said that “out of the last sixteen Chief Justices of India, eight of them were definitely corrupt.” With this, he included a sealed list naming the allegedly corrupt judges. No inquiries or action followed. In 2015, allegations of corruption surfaced against the former Supreme Court justice CK Prasad. When a petition asking for Prasad to be investigated was brought before the court, a two-judge bench led by Misra dismissed it. The bench reportedly remarked that entertaining such petitions would open a “dangerous door” in Indian democracy, and observed that “there was a ‘statutory protection’ accorded to the judges even if they pass some orders, which were arguably vague or absurd.”
But the gravity of Misra’s situation is of a different order altogether—no other CJI or Supreme Court justice has ever been indicted for fraud in a judicial order. His rise in the court despite this record was a frightening omen; much of what it portended has come to pass since he secured the highest judicial office in the republic.
Within months of Misra taking oath, the lawyer’s group Campaign for Judicial Accountability and Reforms, or CJAR, approached the Supreme Court with a startling petition. The Central Bureau of Investigation had documented how a former judge of the Orissa High Court promised to arrange favourable outcomes for the petitioners in a matter that came before the Supreme Court. Both cases were decided by benches headed by Misra.
The CJAR, before a bench headed by Jasti Chelameswar, the second most senior justice of the court, asked for an independent investigation headed by a former CJI. Chelameswar’s bench heard a related petition, and ordered that the matter be put before a constitution bench, of the five most senior justices of the court, headed by Misra. This was on a Thursday, and the matter was scheduled for the following Monday. Misra promptly reassigned the case to a separate bench, also led by himself but excluding the four highest ranked justices behind him. The bench heard the case on Friday, and unceremoniously threw it out.
The CJI’s judicial powers and duties have always been considered equal to those of all other justices of the Supreme Court. Administratively, he has always exercised the power to allocate cases to specific benches. During the hearing, the bench pronounced that the CJI “alone has the prerogative to constitute the benches of the court and allocate cases to the benches so constituted”—even in cases with allegations involving the CJI himself.
Since that day, the customary solemnity has evaporated from the corridors of the Supreme Court. The junior lawyers shuffling about its courtrooms today are in wide-eyed astonishment at the state of the institution. Misra’s use of his power to assign cases to select benches has been publicly questioned even by some of his fellow justices—an incredible breach of the judicial omertà that had so long prevailed.
The optics of this are devastating. In effect, the workings of all the benches of the Supreme Court during Misra’s time at the top can no longer be absolutely above suspicion. Even where justice is done, it may not be seen to be done. No CJI in history has cast such a darkness over the institution.
Misra’s circumstances also raise unprecedented doubts over the equation between the CJI and the government. In an interview in January, Bhushan said that the “executive is blackmailing the chief justice through a CBI investigation … The chief justice is clearly working under the government’s pressure.”
Since the end of TS Thakur’s acrimonious chief justiceship, in December 2016, a bonhomie has prevailed between the judiciary and the executive. This relationship has always been sensitive, especially as the two sides have grappled over control of judicial appointments. Thakur confronted the government over delays in approving recommendations by the collegium, and over a draft memorandum of procedure meant to more clearly codify the appointment process that he found objectionable. Under Misra, and under Khehar before him, the tensions between the CJI and the executive have not resurfaced publicly, and the court has either dismissed or indefinitely adjourned numerous politically sensitive cases. The government, in April 2018, asked the collegium to reconsider its recommendation that KM Joseph, the chief justice of the Uttarakhand High Court, be elevated to the Supreme Court. In 2016, Joseph led a bench that nullified the imposition of president’s rule in Uttarakhand, to the displeasure of the central government. The collegium, led by Misra, did not send his recommendation to the government again, even after protest by some of its members. Meanwhile, the government has still not finalised the memorandum of procedure.
The Supreme Court under Misra is distinctly reminiscent of the institution in its dark days in the 1970s. When Indira Gandhi rattled the judiciary—using parliament to override Supreme Court decisions, and defying the convention of seniority to appoint an amenable CJI out of turn—the court’s present generation of justices was learning the basics of law in classrooms and courtrooms across India. With the Supreme Court again reeling under executive assault at the end of their careers, whatever early lessons they gleaned on the proper role and conduct of a democratic judiciary are now starkly relevant. There were dissenters then and there are dissenters now, but it is the hush in the interim that allowed the recurrence. The pliancy of the Supreme Court in the face of a majoritarian government stands twice exposed. Misra, through his career, has walked the paths that have brought the entire republic full circle.
BATHED IN SUNLIGHT, Jasti Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan Lokur sat on the lawn of Chelameswar’s official bungalow in central Delhi on 12 January 2018, surrounded by journalists. It was an extraordinary sight; never in the history of the country had four serving judges—no less, the judges ranked second to fifth on the Supreme Court—addressed the media directly. The public was about to get an unprecedented glimpse beyond the high walls of the country’s judiciary, and see what went on within.
The judges stated that many less-than-desirable things had transpired in the Supreme Court in the last few months. “We tried to collectively persuade the chief justice that certain things are not in order and therefore you should take remedial measures,” Chelameswar said. “Unfortunately, our efforts failed.” The four were convinced, he continued, “that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country.”
The press conference coincided almost exactly with the first hearing in one of the most scrutinised cases to come before the court in recent time. Less than a fortnight after the Misra-led bench threw out the CJAR petition, family members of the late judge BH Loya went public with their suspicions about the circumstances of his death. Loya died, in late 2014, while presiding over a special CBI court that was hearing a single case—that of the allegedly staged extrajudicial killing of Sohrabuddin Sheikh by police in Gujarat, in 2005. The main accused in the case was Amit Shah—formerly the minister of state for home in Gujarat, under a Modi-led state government, and currently the president of the ruling Bharatiya Janata Party.
Earlier, the Supreme Court had ordered the Sohrabuddin case transferred out of Gujarat to guard against political interference. It had also stipulated that the trial must be conducted from beginning to end by the same judge. Even so, the first judge assigned to the case once it was moved to Maharashtra was transferred away, after ordering Shah to present himself in court. Loya took over, and, according to his family, was offered R100 crore by Mohit Shah, then the chief justice of the Bombay High Court, to discharge Amit Shah. Loya purportedly died of a heart attack while in Nagpur to attend the wedding of a colleague’s daughter. The judge who replaced him discharged Shah after hearing arguments for just three days.
After the family’s revelations, two petitions asking for an investigation came to the Bombay High Court—one filed before its bench in Nagpur, and the other in Mumbai. The petition in Mumbai was scheduled for hearing on 12 January 2018. The day before that, another petition for investigation was filed before the Supreme Court. Misra assigned it to a bench headed by Arun Mishra, a judge reported to be close to the BJP. Arun Mishra led the hearing on the morning of 12 January.
At Chelameswar’s bungalow, the four judges said that while their differences with the CJI went back several months, they had gone to him that morning with a specific request. When journalists asked if the request had to do with the Loya case, Gogoi—next in line to be the CJI, after Misra reaches retirement age later this year—answered, “Yes.” The judges later released an undated letter to the CJI where they raised two specific issues: the assignment of certain cases to certain benches, and the continuing impasse over the memorandum of procedure.
Back in the Supreme Court, Misra and all of the court’s other justices gathered in the lunch room to watch the press conference live on television. When Misra began to say something to the gathering, SA Bobde told him that if he had something to say, he should say it in front of the four. Then he walked out, followed by L Nageswara Rao. Several subsequent meetings between the four judges and the CJI, arranged by other judges of the court, achieved no resolution.
The press conference could have marked a definitive break from the culture of silence that envelops the world of the Indian judiciary, but it did not. It is not just that the Supreme Court has historically been touchy on the subject of judicial corruption, and has reflexively treated specific allegations against individual judges as assaults on the entire institution. It is also that the vast majority of senior lawyers—on the understanding that careers are rarely furthered by antagonising the bench, and concerned with little other than their careers—never speak out. And the media, cowed by the threat of contempt charges, approaches judicial reporting with extreme hesitation.
Many of the country’s most acclaimed legal minds focussed their energies on bemoaning the fact that the four judges had spoken out. “This is bringing down the dignity of the court,” the lawyer Ram Jethmalani stated. “Even assuming that the other judges had a point of view, they can’t call a press conference,” the jurist Soli Sorabjee told the press. “This is just not done.” The opinion of the jurist Fali Nariman was that, “in this branch of activity, you have to lump it. You have to wait till your Chief Justice retires.”
What Nariman, Sorabjee, Jethmalani and others evidently craved was a resumption of the status quo. “And that is because they have been made by this system,” a former member of the higher judiciary told me.
In the aftermath of the press conference, to address the doubts about arbitrary allocation of cases, Misra came up with a new judicial roster, specifying the domains entrusted to every bench. The four judges who spoke against him have been shunted out from all constitution benches, which handle questions of the highest constitutional importance.
Misra eventually transferred the Loya case, with all the petitions before the Supreme Court and the Bombay High Court clubbed together, to a three-judge bench headed by himself. In April, the bench dismissed the petitions asking for investigation. AP Shah, a former chief justice of the Delhi High Court, concluded after having seen the judgment that it was “utterly wrong and jurisprudentially incorrect on so many counts.”
The day after the Loya judgment, seven opposition parties, including the Congress, declared their intent to pursue Misra’s impeachment, alleging multiple counts of misconduct. When the parties presented an impeachment motion before the Rajya Sabha, the chairman of the assembly, the BJP’s M Venkaiah Naidu, refused to admit it. Having himself “weighed the evidence produced in the notice to assess if there is adequate, cogent, coherent evidence to proceed further,” he stated, “there is virtually no concrete verifiable imputation.” The opposition parties appealed Naidu’s decision before the Supreme Court.
Misra became the first CJI ever to face an impeachment attempt. For that fact, and for much else, his record will stand prominently in the history of the Supreme Court for a long time.
IT IS TRUE THAT MISRA did not come from a family of landless Brahmins, but the extent of how much it is not true is astonishing.
Twenty years after the Orissa Famine of 1866, estimated to have killed a million people, Godabarish Mishra was born into the Brahmin family of Apsara Devi and Lingaraj Mishra. The Mishras lived in Banapur, near Puri, where their only child enrolled in the village school. He went on to study philosophy and economics, and became a teacher. Godabarish participated in the Non-Cooperation Movement, and started the Odisha chapter of the Congress, in 1928. He was elected to the state legislature from Banapur in Odisha’s very first legislative assembly elections, in 1937. In 1941, he became the state’s finance and education minister, and, in 1948, he was instrumental in establishing a separate high court for the state, in Cuttack. He was a prolific writer, and is considered a doyen of Odia literature. He died in 1956, aged 70, while still a member of the legislative assembly. Mishra is today honoured as one of the five friends—popularly called the panchsakha—considered the architects of modern Odisha.
Godabarish Mishra had three sons—Raghunath, Lokanath and Ranganath. Raghunath Misra, the eldest, inherited his father’s constituency and was twice elected to the assembly. Loknath Mishra joined Swatantra Party, a breakaway group of the Congress founded by C Rajagopalachari. He served three consecutive terms in the Rajya Sabha, from 1960 to 1978. In 1991, he was made the governor of Assam.
Ranganath Misra was the only one to venture outside politics, and he decided to become a lawyer. He studied at Ravenshaw College in Cuttack and Allahabad University. In 1950, he enrolled as an advocate at the high court his father had laid the foundations for. He joined the practice of Harihar Mahapatra, his father-in-law, who went on to become a judge of the Patna High Court. When Mahapatra was elevated to the bench, Ranganath took over his practice. He worked as a lawyer until 1969, when he became a judge himself.
After having risen to be the chief justice of the Orissa High Court, Ranganath was elevated to the Supreme Court. In 1983, he moved to a house on Delhi’s Safdarjung Road, right opposite the prestigious Gymkhana. Indira Gandhi was a neighbour, and people who know Ranganath closely told me he was always sympathetic to the Gandhi family. When Gandhi was shot and killed by her bodyguards in 1984, Ranganath was among the first to find out. Later, he headed a commission of inquiry into the anti-Sikh pogroms that followed Gandhi’s death, which involved several Congress leaders. The commission’s report did little to hold them accountable.
Ranganath Misra was on the bench of the Supreme Court that decided the case against Union Carbide after the Bhopal Gas Tragedy. He went on to become the twenty-first Chief Justice of India. After his retirement, he was appointed the first chairman of the National Human Rights Commission by the Narsimha Rao government. In 1998, he became a member of the Rajya Sabha on a Congress ticket.
Dipak Misra was born into this family on 3 October 1953, the second son of Raghunath Misra and Chanchala Devi. Along with his elder brother, Soumitri, Dipak did his primary schooling at Puri’s Godabarish Vidyapith, named after his grandfather. Then, along with their father, Dipak and Soumitri moved into Ranganath Misra’s house, right opposite the Deer Park in Cuttack.
The bungalow was always buzzing those days, with a busy legal practice on the premises and regular gatherings of the extended family. Frequent visitors remembered Dipak as a timid boy, hectored by other boys his age, who mostly kept to himself.
One of these visitors described an incident from 1972, when Dipak joined some other boys on a hunt. After shooting a deer, they loaded it into their jeep. “We made Dipak sit at the back,” where the carcass was, the visitor told me, laughing hysterically. “He was so scared his face had turned white.”
Dipak had little interest in the law and wanted to become a teacher. He opted to study English literature, and enrolled at Ravenshaw College. Drama also fascinated him; his brother Soumitri fondly remembered that he once played The Boy in an adaption of Samuel Beckett’s Waiting for Godot.
After graduating, however, he opted to study law at Madhusudan College, in Cuttack. I asked Soumitri what made Dipak change his mind. “He was seeing Justice Ranganath Misra,” Soumitri said. “Ranganath Misra’s son Devananda Misra was also a lawyer”—and had inherited his father’s law chamber—“so he thought that maybe he can start under him. So maybe that’s why.”
Dipak was at the college when Indira Gandhi declared the Emergency, in 1975. A batchmate of his recalled that there was a lot of cheating during examinations at the time. Dipak was wholly removed from student politics, if Madhusudan College had any student politics in the first place. He got his law degree in 1977, enrolled as an advocate at the Orissa High Court and joined the chamber of Devananda Misra. Soumitri now runs a homeopathic clinic in Bhubaneshwar.
Devananda Misra’s “fiat ran large in those days,” a relative of the family told me. Another relative said that “Dipak was not slated to be the big guy in that house.” He had to toil hard under Devananda, but eventually this had its rewards. The chamber catered to all sorts of clients, so the young man’s knowledge of the law grew diverse as well. He appeared in the high court as well as the district courts and tribunals, and gained proficiency in service law, administrative law, real estate, tax and civil matters.
As it happened, Devananda was not willing to follow his father’s path and become a judge. “He thought that it would be too much work,” the relative said. When Ranganath Misra was elevated to the Supreme Court, Devananda followed him to Delhi. The chamber fell into Dipak Misra’s lap.
Speaking at the Constitution Club in Delhi this April, the senior advocate Indira Jaising noted the propensity of the relatives of former judges to end up as judges themselves. Jaising mused, “Is truth genetically transmitted?” Jaising did not answer her question, but it is often the case that chambers, libraries, client lists, prestige—many of the things that form the basis of one’s consideration for judgeship—are passed from one generation to the next. Dipak Misra got his inheritance from Devananda.
This is the legacy Misra obscured when he posed as a landless Brahmin. He was not the only member of his family to acquire government land by these means. Ranganath’s son Sibananda did the same thing, in 1979—though in his application to the government he wrote that he was the son of Raghunath.
In 1979, the same year he applied for the land, Misra got married to Suprama Mishra—or Gopa, as everyone calls her—whose father was a district judge in Chhatrapur, Odisha.
As the years passed, Misra gained confidence in his abilities. A colleague of his from the time told me that it was usual for him to recite whole passages of obscure Sanskrit texts while arguing cases. His friends and peers referred to him as Pandit-ji. The Boy of faint heart had grown, and even acquired a tendency to tell everyone that he was “an inch taller than Napoleon.”
BY THE LATE 1980s, Misra had his own batch of juniors. Patitapaban Panda joined his chambers in 1989. Panda had a past in student politics, had played football at state level, and came from a family that could afford him an Ambassador car when he joined the Bar. Since the family stayed in Bhubaneshwar, the idea was that the car would make his daily commute to the high court, in Cuttack, a breeze. So, Panda said, Misra “knew that Mr Panda is financially sound.”
Panda was already practising in Bhubaneshwar before he came to Misra’s attention. “I did not approach him for junior-ship,” he told me. “I had my practice and I had my reputation. I was an asset to him.” Eventually, Panda started appearing for Misra in the high court. On some days he shuttled between Bhubaneswar and Cuttack twice. He didn’t mind. He was part of the busiest practice in town.
One day, Panda recalled, Misra told his junior that the “car is not the right symbol” for him. He suggested that Panda buy a scooter and leave the car at Misra’s house. Panda did—even while still paying off a loan on the car in instalments—and Misra began to use the car himself. This carried on for about a year.
Panda realised that the only thing he could do was to sell the car. He put the money he got for it in the bank, and “took 5,000 rupees out of that money every month for my own survival.” He was not getting paid by Misra.
I asked Panda why he never simply asked for his car back. “Such a polished man he was, very shrewd,” he told me. “He would talk in very good English, Sanskrit, quote Ramayana, Mahabharata.” Panda did not know what to say.
Every Saturday, when the high court in Cuttack was closed, Panda appeared in his own capacity at the court in Bhubaneshwar to earn some money. “And, on Saturday, I would get a call from either him or his wife to buy six tickets for cinema.” Panda did not have the money to buy these. He would reach out to an uncle high up in the police, who would send someone from a local station to go and get them. Even after all of that, Misra insisted that Panda come along as a guard. “He always wants to be protected,” Panda said. The movie would usually be followed by a meal at Bhubaneshwar’s Hotel Oberoi. The hotel was one of Misra’s clients, so the bill was adjusted against his fees.
Misra’s children were students at St Joseph’s, a convent school in Cuttack. Panda represented the Diocese of Cuttack in his personal capacity. Misra, he said, used to send him to the principal of the school “to flatter her to promote” his kids.
Just before Misra was elevated to the bench, the Odisha State Finance Corporation engaged him in a case. Panda had represented the OSFC before he joined Misra’s chamber, and was still working for the corporation on the side. “After his warrant for judgeship had come, one day, I went to the OSFC office to collect my bills—around 40,000 rupees,” Panda told me. “There, I was told that Dipak Misra had collected my fee as well when he collected his own.” The OSFC told Panda that Misra was supposed to give him his part. He never did.
Once, shortly before Misra began serving on the Orissa High Court, Panda broached the subject of his OSFC bills. “It is in your interest to not bring it up,” Panda said he was told.
“I have left politics, my public life, I have left sports—everything for him,” Panda said. “It was a good chamber, running chamber, files were there, cases were there—until and unless I handle this and conduct myself I can’t be a lawyer. That was my impression. My father was in the railways. I do not come from a family of lawyers.”
Misra told Panda “not to buy journal books, saying that that books are here. The impression that he was giving me was that I will be leading the chamber after him.” That did not happen. “I left the chamber on a very sorrowful day at that time,” Panda said. “Nothing was given to me. No files. No books. I was shocked. Then someone from Delhi came to take over the chambers.”
Panda stayed with Misra’s practice because this is how he believed legal careers were made—by patronage. Panda kept in touch with Misra, and was present at his oath-taking ceremonies for the high courts of Orissa, Madhya Pradesh, Patna and Delhi, as well as the Supreme Court. Whenever he tried to meet Misra, “the usual mode was that he’ll say that he is busy and he will meet me the next time.” Finally, the door was firmly closed. “He told me that you should only come when I call you. Since that day I have not gone.”
Panda was reluctant to speak when I first reached out to him for an interview. But once he started talking when we met, he could not stop. By the end of the interview, his face was frozen in a rictus of hostility. “He is a judge,” he said at one point. “He said that many things will come. … God will give me. He’s a judge, na? Bhagwan! So we fall silent. Otherwise he will be blamed, he will come into disrepute.” Panda said he had been “exploited like anything,” and now had no hope. “Now I am Let us go. Let people know who you are, how gentlemanly you are.”
MISRA WAS APPOINTED to the Orissa High Court in 1996. His elevation to the bench had to be governed by the procedure laid down in the Second Judges’ Case in 1993. Misra’s name would have been recommended by the chief justice of the Orissa High Court, in consultation and agreement with his two most senior colleagues in the court. The three judges would have sent their written opinions on Misra’s bona fides to the chief minister of Odisha. A copy of the same would have gone to the governor of the state, the union minister of law and the CJI.
The minister of law must have considered Misra’s name in light of any information that the government had about him. From there, the complete file would have gone to the Supreme Court, where the CJI would have consulted his senior-most colleagues, and also other judges who had experience on the Orissa High Court. An updated file containing the opinions of everyone involved in the process so far must have gone back to the law minister, who would have brought the prime minister up to speed. The prime minister advised the president, and the president signed a warrant of appointment.
“The constitutional purpose to be served by these provisions is to select the best from amongst those available,” the judgment of the Second Judges’ Case states. “The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed.”
The judges of the Orissa High Court and the Supreme Court, the chief minister and the governor of Odisha, the union law minister, the prime minister and the president all failed to take note of the district magistrate’s order indicting Misra of fraud. The purpose of the provisions laid down in the Second Judges’ Case was utterly defeated.
Misra was 42 years old at the time of his appointment. The doctrine of seniority makes sure that anyone who makes it into the ranks of the higher judiciary at that age will almost certainly serve as the chief justice of one or more high courts, and end up in the Supreme Court, with a strong chance of becoming the CJI.
Judges generally have a long tenure at the high court where they are first appointed; Ranganath Misra spent over a decade on the Orissa High Court before serving as its chief justice for four years. Dipak Misra was transferred to the Madhya Pradesh High Court, in Jabalpur, barely a year after he joined the bench. “This does not usually happen,” a senior advocate of the Supreme Court told me. “From what I know, there was some uproar regarding a bail application.”
After several senior advocates of the Orissa High Court told me they knew nothing about why Misra was transferred, I asked Patitapaban Panda.
“It was the last day of the court before the summer vacation, and a lot of bail applications were pending before the court,” Panda said. “The lawyers were howling. The chief justice had left early, as had the bench listening to bail applications.” Some lawyers approached the senior-most judge still at the court, and he permitted several of them to appear before Misra, who was heading a bench of one. “Later, the advocate general complained that Misra had passed orders in cases that were neither listed before his bench nor moved to his court by the senior-most judge that day. He complained to the chief justice of the high court and he complained to the Chief Justice of India.”
I placed this story before some senior advocates in Cuttack. None of them explicitly denied it. Their feeling, they told me, was that Misra may have been a victim of the caste politics in the Orissa High Court. “There was a lot of jealousy against Dipak at that time on the bench,” a former judge told me. “You need to understand that, since the inception of the Orissa High Court, a tussle has been playing out between Brahmins and Karanas, or Kayasthas.” The Karanas on the bench, according to the former judge, were not well disposed towards Ranganath Misra, and they did their best to push Dipak Misra out.
One of Misra’s relatives said he had volunteered to be transferred. “I think that he wanted to move away from the influence of Ranganath Misra,” the relative said. “You have to understand that Dipak and Soumitri were not treated well in Ranganath Misra’s house. When everyone would sit at the dining table, they would be eating on the floor. But then again, he would be nothing if not for Ranganth Misra. After becoming a judge, he could pull himself away from Devananda and Ranganath Misra, and that is what he did.”
WHEN MISRA MOVED TO JABALPUR—with his wife, Gopa, and their children—he left his entire life in Cuttack behind. Since then, he has not met his siblings or their families. Hundreds and hundreds of calls—to congratulate him, to talk to him, to invite him for family events—have gone unanswered. The caretaker at the family’s ancestral home, in Banapur, has been told to take care of Misra if he ever shows up, but he has not.
When Ranganath Misra passed away, shortly after Misra was elevated to the Supreme Court, he did not go to Cuttack for the funerary rites. A thing like that does not go unnoticed in a small town; everyone I spoke to in Odisha made a point of reminding me.
In 2016, on the day after Ranagnath’s wife, Sumitra, passed away, relatives arriving at the house opposite the Deer Park noticed a traffic jam. Dipak Misra was passing through, with his cavalcade of Z-plus security—the heaviest the government can offer—on the way to his own house half a kilometre away. The bulk of those gathered at Ranganath’s house saw the cavalcade pass, without stopping. There was some discussion about whether someone should go and ask Misra to come over, but no one did.
At a function to see him off from the Delhi High Court before his installation in the Supreme Court, in 2011, Misra outlined his wife’s place in his life. “My pillar of strength and my anchor of progress has been my wife, Gopa Misra-ji,” he said. “Some say behind every successful man there is a woman. In my case, it requires to be modified—a virtuous, strong and courageous woman can alone make a man successful, as she leads, in a way, from the front, does not stand behind.”
In August 2016, Kalikho Pul, a former chief minister of Arunachal Pradesh, died in an apparent suicide. Pul, a defector from the Congress, had taken power in early 2016, backed by the BJP and fellow rebels. He was brought down, in July, after the Supreme Court ruled that the state governor, answerable to the BJP-led central government, had acted unconstitutionally to topple the preceding, Congress-led administration. A 60-page Hindi text that Pul allegedly prepared before his death claimed that he had been approached by two men asking for money in exchange for a favourable verdict: Birinder Singh Khehar, who wanted Rs 49 crore, and Aditya Misra, who wanted Rs 37 crore. Pul’s text identified Birinder as the son of JS Khehar, then still the CJI. It identified Aditya Misra as Dipak Misra’s brother. The bench that heard the case was led by Khehar, and included Misra.
Dipak Misra does not have a brother named Aditya. “Actually, Kalikho Pul got the wrong person,” one of Misra’s relatives told me. “He mentions someone called Aditya Misra, who is supposed to be his brother. It is not Aditya Misra, it is Aditya Mahapatra, who is his brother-in-law—his wife’s brother.”
MISRA SPENT MORE THAN A DECADE at the Madhya Pradesh High Court. A senior advocate who appeared before him there told me that his conduct as a judge was upright, if a bit eccentric. From a loquacious lawyer, Misra had become a verbose judge. The senior advocate told me Misra sometimes resorted to arguments in Sanskrit, leaving lawyers baffled. The opening paragraphs of Misra’s judgments have just recently gained public notoriety, but his liberties with rhetoric go far back.
Even in the early years, he would begin judgments by quoting a writer and exhibiting his philosophical understanding of the case, before switching back to the facts before him. In Raghvendra Prasad Gautam vs Union Bank of India, he began by quoting HG Wells. In Kalang vs State of Madhya Pradesh, he started with John Steinbeck. In Mangilal vs State of Madhya Pradesh, Misra wrote,
Marriage is regarded as an institution to save a civilized man from the tyranny of sex. Instances do take place where a married man becomes a slave to this tyrant and exposes his unbridled appetite and lowers himself to an unimaginable extent for gratification of his carnel desire. The case at hand graphically exposes the inferior endowments of the appellant who failed to husband his passions and committed rape on a 9-year-old girl.
As the years pass, these ramblings preludes got longer and longer. When he could use the word “irrefutably,” he would rather use “irrefragably.” In Laxminarayan vs Shivlal Gujar, in 2002, Misra wrote,
The term “Law” is applied and taken recourse to herald the incandescent attributes of civilisation with stupendous felicity and the advancement of society is conditioned by the appropriate legal evolution. Sometimes the law is conceived as “jus naturale”, at times as “jus civile” and some other times it is equated with “jus honorarium”. But the term “jus” is always important. “Jus” should never succumb to “Joss”. That is why it has been said that the law is not the study of words alone but a penetration into the study of nature within and nature without which are projected through words that have the moving power of life. For that Simon pure reason William Shakespeare spoke: “The Law hath not been dead, though it hath slept.”
In 2004, Misra used the word “cavil”—a noun for a petty objection, or a verb describing the making of one—in a judgment for the first time. In 2005, he used it in seven judgments. In 2006, after hearing Pradeep Kumar Tiwari vs State of Madhya Pradesh, Misra concluded that the matter fell outside his court’s jurisdiction. Hence, he wrote, “the said cavil is left open.” In describing a complaint before the Supreme Court as insignificant, he ended up calling it a “trivial cavil.”
Such linguistic indiscipline on the part of a judge is not new, nor is it unique to Misra. In 1959, on the occasion of his retirement as the CJI, SR Das mocked his colleague M Hidayatullah, saying he “has given us three Gospels. Stroud’s Judicial Dictionary, Wilson’s Glossary and Words and Phrases by some author whose name I forget. I do not know when he will produce the fourth Gospel.” The language of VR Krishna Iyer, who served on the Supreme Court from 1973 to 1980, also invited criticism from his fellow judges. The first line of Iyer’s opinion in Manohar Nathurao Samarth vs Marotrao and Others is typical of his style—which was a precursor to Misra’s own.
A tricky issue of statutory construction, beset with semantic ambiguity and pervasive possibility, and a prickly provision which, if interpreted literally, leads to absurdity and if construed liberally, leads to rationality, confront the court in these dual appeals by special leave spinning around the eligibility for candidature of an employee under the Life Insurance Corporation and the declaration of his rival, 1st respondent, as duly returned in a City Corporation election.
The jurist HM Seervai, in his authoritative Constitutional Law of India, cites Iyer’s style to illustrate how judges should not write. While analysing one of Iyer’s judgments, Seervai penned a warning that applies to much prolix judicial prose. “The style in which it is written makes it difficult to give a brief and accurate summary,” he noted. “In fact, his style created the appearance of a difficult problem of interpretation in the present case, where no such problem existed.” Seervai also cautioned against judges crossing the line between “two distinct and inconsistent functions, namely, that of a judge and that of an expert witness.”
During Misra’s farewell function as he was leaving the Delhi High Court, a fellow judge described him as “a philosopher” and a “great poet and author,” with a great “understanding of human psychology,” whose “intelligence is characterised by great knowledge and wisdom, great intellect and contemplation.”
MISRA’S TENURE IN THE SUPREME COURT began on 10 October 2011. The whole process of appointment, as laid down in the Second Judges’ Case, was repeated again. Again, no one took any notice of the district magistrate’s order. Misra presumably did not disclose his wrongly acquired land in his requisite asset-declaration form when joining the Supreme Court, or any of the high courts he served on.
Since Misra arrived at the Supreme Court, his judgments have been subject to much close examination by lawyers, jurists and the media. Gautam Bhatia, a lawyer and legal analyst, has regularly dissected Misra’s judgments on his widely read blog. Some of the patterns that emerge are no more palatable than his prose.
In 2014, a two-judge bench headed by Misra struck down a clause of the Cine Costume Make-Up Artists and Hair Dressers Association bye-laws that banned the membership of women. Misra authored the judgment. Since the association is a trade union, Misra reasoned, it was subject to the Trade Unions Act of 1926. Section 21 of the act, quoted in the judgment, states that “any person who has attained the age of fifteen years may be a member of a registered Trade Union subject to any rules of the Trade Union to the contrary.” Misra concluded, “The aforesaid provisions make it graphically clear that Section 21A”—which defines certain grounds for disqualification—“only prescribes the age and certain other qualifications. The aforesaid statutory provisions do not make a distinction between a man and woman, and rightly so.”
While the judgment was widely welcomed, Bhatia highlighted faults with Misra’s reasoning. Misra completely overlooked the part of Section 21 which makes explicit that membership, after age criteria are met, may be “subject to any rules of the Trade Union.” Bhatia wrote, “Apart from being a case of bad statutory interpretation, the conclusion is utterly ludicrous, because on the Court’s reading of the statute, any person above the age of fifteen has a statutory right to become a member of any trade union registered under the Trade Unions Act.” The judgment was heavy with references to the women’s rights movements and international declarations but spent “no time in working through the tangled legal issues that actually arose for its consideration. As a result, we have a wonderful outcome, but no reasoning. That makes for good headlines, but bad law.”
This was not an isolated example. In 2015, Misra authored the judgment in Devidas Ramachandra Tuljapurkar vs State of Maharashtra. This dealt with a poem titled “Gandhi Mala Bhetala”—I Met Gandhi—published in a private-circulation magazine in 1994. In 2010, a complainant approached the courts arguing that it violated Sections 153A and 153B of the Indian Penal Code, which outlaw causing disharmony between classes, as well as Section 292, which outlaws obscenity. The lower courts dismissed the charges under Sections 153A and 153B, but upheld the charge of obscenity.
The question before the Supreme Court, as stated in the judgment, was this: “whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, [to] use the name of a historically respected personality by way of allusion or symbol is permissible.” Inside the first four paragraphs, Misra cited Shakespeare, Keats, Byron, Shelley, Wordsworth, Alexander Pope, Dryden, Ezra Pound, TS Eliot, Pablo Neruda, Valmiki, Bharata, Dandin, Vamana and Kuntaka, before finally stating, “Freedom of writing is not in question. That cannot be. And we say so without any fear of contradiction.”
The judgment ended up creating a whole new exception to the right to freedom of speech and expression in cases where obscene language was used to describe “historically respectable figures.” It did not define or catalogue who these “historically respected personalities” were, since, Misra wrote, “that is not the issue in this case.” It was not an issue at all until Misra’s judgment invented it.
In an obscenity case in 2014, the Supreme Court had adopted the so-called Roth test, defined in a 1957 case in the United States. It states,
The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.
Misra wrote in his judgment,
While dealing with the facet of obscenity, this Court has evolved the test. The test evolved by this Court, which holds the field today is the “contemporary community standards test”.
As he had applied only part of a sentence from the Trade Unions Act in the make-up artists’ case, now Misra selectively misstated the Roth test. “It is not open to judges to pick one part of a judicially evolved test, established through years of gradual and incremental precedent, and omit another part that is inconvenient to the conclusion that they wish to reach,” Bhatia wrote.
In 2012, Misra authored the judgment in Vishwanath Agrawal vs Sarla Vishwanath Agrawal. This involved a marital dispute, where a trial court had refused to allow the husband to divorce his wife. Misra’s judgment, which granted the divorce, defined what could constitute mental cruelty in marital cases. It noted that “the wife was crumpling the ironed clothes, hiding the keys of the motorcycle and locking the gate” to trouble the husband, and that “the said incidents were taking place for a long time.” This was enough “to understand the embarrassment and harassment that might have been felt by the husband. The level of disappointment on his part can be well visualised like a moon in a cloudless sky.”
In Subramanian Swamy vs Union of India, in 2017, the Supreme Court addressed a clutch of petitions that challenged the law of criminal defamation. The judgment was written by Misra, and soon became the most cited example of his style.
Misra, heading a two-judge bench, ruled against the petitioners, saying that “reputations cannot be allowed to be sullied on the anvils of free speech as free speech is not absolute.” The judgment noted that defamation is a private wrong, then dissolved the distinction between public and private wrongs altogether by saying, “Individuals constitute the collective.”
“The main contention—that criminalising a private wrong is a disproportionate—and therefore, unreasonable—restriction upon free speech, is not considered by the Court,” Bhatia wrote. The judgment was difficult to analyse, he continued,
not only because of conceptual slippages and screaming silences where there should be argument, but also because of its language. What, for instance does it mean to exposit “cavil in its quintessential conceptuality and percipient discord”? What is an “asservation”? What is an “oppugnation”? … Do Judges not have a duty to write clearly, stick to the point, and give reasons for their conclusions? Unfortunately, the indiscipline with which the Court examines the law and the Constitution here, is equally matched by its indiscipline with language.
BY THE TIME IT CAME before Misra’s bench, the Yakub Memon case already had a tortuous judicial history. Memon was sentenced to death by a trial court, in 2007, for his role in the 1993 bombing in Bombay. In July 2015, with his execution approaching, Memon submitted a mercy petition to the governor of Maharashtra, and petitioned the Supreme Court to grant a stay on his execution till the petition was decided. He had earlier seen a mercy petition on his behalf rejected by the president. A petition to review the rejection was dismissed by the Supreme Court, as was a curative petition appealing that decision.
The new petition was heard by a bench of Kurian Joseph and Anil Dave. During the hearing, Joseph noted that the bench that dismissed Memon’s curative petition had not been constituted according to the court’s rules—which say that a curative petition must be heard by the three senior-most judges, along with two judges who originally heard the matter. In Memon’s case, the petition was heard by the three senior-most judges only. To Dave, this fact was “irrelevant.” At one point, he said to Memon’s counsel, “I hope you know who you are trying to save.”
The bench passed conflicting orders, with Joseph maintaining that Memon had a constitutional right to a fair hearing. The CJI, HL Dattu, constituted a new three-judge bench to hear the case. The hearing took all of 29 July 2015, before Misra, PC Pant and Amitava Roy. Memon was scheduled to be hanged the following morning.
A senior advocate appearing for Memon told the bench that the dismissal of the curative petition had not followed the law, but Misra told him the discrepancy was a mere technicality. The advocate pointed out that the warrant of Memon’s death was signed while his curative petition was still before the Supreme Court, and that since Memon still had a mercy petition pending before the governor of Maharashtra, the warrant had no value. Another senior advocate said that the due consideration of a mercy petition is not a matter of grace but a constitutional right. A third senior advocate referred to Shatrughan Chauhan vs Union of India, where the Supreme Court had ruled that “a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution.”
The attorney general, Mukul Rohatgi, opposed all these arguments, and claimed that it was Memon who was making a mockery of procedural guidelines. “How many mercy petitions is Yakub Memon going to file?” he asked. Regarding the curative petition, Rohatgi argued that “if it is dealt with by three senior-most Judges, as in this case by the Chief Justice of India and two senior-most Judges, the order would not become void.”
The judgment, authored by Misra, agreed with the attorney general that the curative petition remained valid, and held that there had not been “any impropriety in the constitution of the Bench.” As for the stipulated 14 days between the rejection of a mercy petition and execution, the judgment agreed with Rohatgi’s submission that the time must be calculated from the day the president dismissed the first mercy petition, back in April 2014.
The governor of Maharashtra dismissed Memon’s mercy petition that evening. Another mercy petition presented to the president was also rejected. A group of lawyers who went to the CJI’s residence were able to convince him, after midnight, that another hearing was necessary, since Memon was being denied the 14 days between the rejection of the mercy petition and his execution.
The hearing was scheduled for about 3 am, some five hours before Memon’s scheduled hanging. Memon’s lawyers made it clear that they were not challenging his death sentence, and asking only for the fortnight’s wait stipulated by the Supreme Court in Shatrughan Chauhan vs Union of India.
The judgment was pronounced at 5 am, and did not allow Memon the 14 days. He was hanged in a Nagpur jail about 2 hours later.
The final judgment, titled Yakub Abdul Razak Memon vs State of Maharashtra, begins, “The issue that had seen the end after the day’s drill at 4.15 p.m. yesterday, appears to have unending character because precisely after ten hours, about 3.15 a.m. on 30.07.2015, it has risen like a phoenix possibly harbouring the idea that it has the potentiality to urge for a second lease of life.”
“The sarcasm so evident reveals a sad state of affairs,” the lawyer and commentator AG Noorani later wrote. “The heavens would not have fallen if the deadline of July 30 had been extended by a fortnight. … The tearing haste has no precedent. The flaws stand out in bold relief.”
When I mentioned the case to the constitutional scholar Upendra Baxi, he replied, “That is a bad, bad judgment.” He did not want to say any more.
A week after the judgment, an anonymous letter with a death threat was discovered at Misra’s residence. Misra was assigned Z-plus security in response.
In 2017, Misra led a Supreme Court bench that upheld the death penalty handed down to the four men convicted in the 2012 Delhi gang rape case. In the judgment, Misra described the crime as an act of “mental perversion and extreme brutality,” and stated, “If ever there was a case which cried out for death penalty, it is this one.” The lawyer Alok Prasanna Kumar wrote of the judgment, “Instead of properly examining the factors, the court takes shelter behind mindless rhetoric and bombast.” Kumar criticised the judgment for not holding the police “accountable for its failings in this case,” and so missing an opportunity to effect reform.
TOWARDS THE END OF 2016, Misra delivered a highly controversial judgment to do with respect for the national anthem. It was not his first encounter with the theme.
A man named Shyam Narayan Chouksey had approached the Madhya Pradesh High Court in 2003 to claim that a scene in the movie Kabhi Khushi Kabhi Gham showed the national anthem in a negative light, and complain that cinemagoers were not standing up when the anthem played. Misra was on the bench that heard the petition, and he authored the judgment.
This was one of Misra’s early classics. The first paragraph talks about freedom of expression, the media as the fourth pillar of democracy, cinema as a medium and the filmmaker Dadasaheb Phalke—before even defining what the issue is. The bench watched the movie, and broke down the scene in question in nine separate points. “To understand and appreciate the controversy in issue,” Misra wrote, “we are inclined to think that it is necessitous to understand the concepts of national feeling, symbolic purpose, the attached dignity, sense of popularisation and ingredient of patriotism and quintessential facet of honour which are insegregably and inseverably connected with the National Anthem.”
The judgment ordered the movie withdrawn from all theatres, unless the producer removed the scene that depicted the anthem in a way that is “contrary to national ethos and an anathema to the sanguinity of the national feeling.” One line in particular stands out today: “Any person who shows disrespect to the national anthem in a way, has to be regarded involved in anti-national activity.”
In 2004, the Supreme Court overruled this judgment, and Chouksey filed a review petition. The court, in 2006, laid the petition to rest.
Ten years later, Chouksey approached the Supreme Court again, asking for measures to make sure that respect was shown to the anthem in all sorts of circumstances. The Modi government was then stoking nationalist sentiments, and tagging any criticism of its actions as anti-national. Chouksey’s petition came before a Misra-led bench, which passed an extraordinary interim order. It listed seven directives that “shall be scrupulously followed.” Number four was this:
All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.
The order was, the lawyer Alok Prasanna Kumar wrote, “an affront to the Constitution, and a disgraceful dereliction of the judges’ constitutional duty.” Gautam Bhatia wrote, “What passes for ‘reasoning’ in this ‘order’ ought not to be dignified with legal analysis.”
The order referred to Article 51A of the constitution, which lists certain fundamental duties and asks citizens “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.” These duties were inserted into the constitution during the Emergency, and, as Kumar noted, they are not enforceable by law.
The tyranny of the order was amplified by the growing vigilantism in Modi’s India. There were multiple reports of cinemagoers—including, in some cases, physically disabled people—being assaulted for not standing up while the anthem played in theatres. In Misra’s judgment, the interests of the Modi government and the wisdom of the Supreme Court aligned in lockstep.
The order was passed at about the same time that Jayanta Das, after his second letter about Misra to the serving CJI, was writing desperately to the judges of the Supreme Court about Misra’s indictment for land fraud. The following summer, towards the end of July, Das came to Delhi. “I wanted to meet senior advocates, former judges or anyone else,” he told me. He went around the Supreme Court and several lawyers’ chambers for a few days, but, except for a few headlines, nothing came of it.
On 26 July, Khehar, as the CJI, formally recommended Misra as his successor. That day, Das took the train back to Odisha. “There was nothing else to do,” he said.
Within days of coming home, Das was charged and convicted under cyber pornography laws—the first such case in Odisha. He claimed that he had been hacked. Das’s bail application was inexplicably delayed, and Jasti Chelameswar wrote to the chief justice of the Orissa High Court to ask about it. The bail application was finally heard this April. Das stayed in jail for over eight months.
THE SUPREME COURT has been heavily politicised in the years Misra has spent on the bench. At the start of this decade, it delivered two judgments—in the Salwa Judum case, in 2011, and in the 2G case, in 2012—that vexed the Congress-led government.
After the 2G judgment, the government filed a presidential reference. The court’s judgment cancelled the government’s previous allocation of spectrum to telecom companies, and stated that natural resources should be distributed via auction—a prescription that the government saw as exceeding the judiciary’s usual function, as an arbiter of what is and is not legal. The president asked for clarification on whether auctioning really was to be the only method used in all cases. The court responded that it was not, but that the government had to guard against undue favour in any allocation process. Khehar, in a concurring opinion, wrote, “Surely, the presidential reference has not been made to seek such an innocuous advice.” Misra was on the bench as well, but did not write a separate opinion.
The Congress, while in power, made a fumbling attempt to restructure the process of judicial appointments. A bill to do so was tabled in the Rajya Sabha, with support from the opposition BJP, but it never came into law. In its manifesto for the 2014 general election, the BJP stated an intention to set up a commission for judicial appointments.
After the BJP won the election, the first list of recommended appointees that the collegium sent to the government included the name of Gopal Subramanium. A senior advocate, Subramanium had been involved with cases involving a spate of extrajudicial killings in Gujarat under the leadership of Narendra Modi. The Modi government sent Subramanium’s name back to the collegium to be reconsidered. Subramanium withdrew his own name, and alleged that he was being targeted because of his past work.
One of the first moves of the new BJP government was to create the National Judicial Appointments Commission, by way of a constitutional amendment. In April 2015, the same month that the act came into effect, the Supreme Court admitted a batch of petitions challenging constitutional validity of the NJAC. They were heard by a five-judge bench led by Khehar. TS Thakur was still the CJI.
The mood in the court in those days was quite different to what it is now. Misra was once on a bench which remarked that the Modi government was behaving like Kumbhakarna and Rip Van Winkle in responding to notices. When the chairman of the Bar Council of India called Modi a reincarnation of MK Gandhi, Misra advised lawyers to avoid trying to please politicians.
The judgment in the NJAC case, delivered in October, voided the NJAC Act in its entirety. Khehar, quoting the BJP veteran LK Advani, said that the “forces that could crush democracy, were now stronger than ever before.” The court ordered the government to formulate the memorandum of procedure for appointments, under the framework of the collegium system. It did not set a deadline for this. Most of the people I spoke to agreed, in retrospect, that this was a great folly.
The government did not take the judgment well. The attorney general, Mukul Rohatgi, called it “flawed”; the law minister, Ravi Shankar Prasad, described it as “a setback for parliamentary sovereignty.” For the remainder of TS Thakur’s term, the government dragged its feet over formalising appointments. The number of judicial vacancies in the courts, and in turn the delay in addressing cases—both very high to begin with—skyrocketed.
At an event in Delhi in April 2016, Thakur broke down in tears as he spoke of the shortage of judges. He appealed to Modi, who was in attendance, to “rise to the occasion and realise that it is not enough to criticise.” Cabinet ministers exchanged acrimonious comments with former judges almost every week that followed.
Some of the Supreme Court’s judgments delivered around this time were body blows to the Modi government. Hearing a dispute over BJP legislators’ alleged attempts to topple a Congress government in Uttarakhand, a bench led by Misra ordered a floor test in the state assembly under the supervision of the court, and disqualified Congress MLAs who had defected to the BJP from the vote. This resulted in the Congress government being reinstated. Then came the case that felled Kalikho Pul’s rebel government in Arunachal Pradesh.
In November, at an event to mark Constitution Day, the law minister and Khehar, the incoming CJI, exchanged stern warnings about the lakshman rekha—the cautionary line—that each should observe. But by February 2017, at another public event, Khehar and Modi were exchanging compliments. Modi went so far as to say that it “would have been good if Justice Khehar had continued to hold the position for some more time” beyond what was allowed by his retirement. Important cases with political implications—such as a dispute between the Delhi government and the lieutenant governor of the capital—were put on hold. The end of rancour took many by surprise, and has never been fully explained. The reasons for it are only ever talked about in hushed voices, off-the-record.
THE INDICTMENT FOR LAND FRAUD was not the only controversy attached to Misra when Khehar, as the outgoing CJI, recommended him as his successor. After Kalikho Pul’s death, his widow, Dangwimsai, wrote a letter to Khehar, in February 2017. She asked permission to file charges against the judges named in the alleged suicide note. In K Veeraswami vs Union of India, the Supreme Court had ruled that members of the higher judiciary can only be charged with corruption with the prior permission of the CJI. “I am sure that you will have the matter placed before the appropriate judge in accordance with the judgment in the Veeraswami case,” Dangwimsai wrote.
Since Khehar was named in the note, applying the principle that no one should be his own judge, he could only have passed it to the senior-most judge below him. Here that was Misra, himself named in the note.
Though the letter had requested an administrative action, Khehar decided to treat it as a criminal petition, which he listed before a two-judge bench. When the matter was heard, the lawyer Dushyant Dave, appearing for Dangwimsai, told the judges, “A former judge of the Supreme Court met me on behalf of the CJI. I do not want to say more. I beg your lordships to stay away from this case.” Dave never revealed who the judge was, or what was said.
Dangwimsai moved to withdraw the petition, which the bench allowed. She approached the vice president seeking action, but nothing came of it. A petition in the Delhi High Court demanding that police start an investigation into the note’s allegations was thrown out, with the petioners told off for making “wild allegations” and fined Rs 2.75 lakh.
Khehar’s handling of Dangwimsai’s letter left many observers shocked. “The content of that letter may have simply been Kalikho Pul’s beliefs,” a former member of the higher judiciary told me. The note did not provide any evidence of the allegations it contained. “Anybody can call anyone saying that I am Khehar’s son or Misra’s brother or Chelameswar’s grandfather. But that was for an investigation to find out.” No such investigation ever took place.
As for the land-fraud indictment, the case in the Orissa High Court that involved the CBI investigation had, since 2013, been before a bench led by Indrajit Mahanty. Jayanta Das told me the matter had been adjourned several times. Mahanty himself was facing an in-house inquiry after charges of corruption. The panel investigating the charges wrote to Khehar in June 2017, when he was the CJI, asking for guidance. The name of a serving Supreme Court judge kept coming up, and looking into that was outside the panel’s purview.
Khehar did not respond to the letter. The name of the Supreme Court judge was kept secret. The culture of silence endured.
IN SEPTEMBER 2017, less than a month after Misra became the CJI, the Central Bureau of Investigation lodged a First Information Report in a case involving the Prasad Education Trust. This was the document that prompted the CJAR’s petition to the Supreme Court asking for an independent investigation.
The trust had applied for permission to admit students at a private medical college near Lucknow. The health ministry refused it, acting on advice from the Medical Council of India that the proposed college did not meet required standards. In August, the trust approached the Supreme Court, which directed the government to reconsider the application. It did, and permission was again refused. The trust, with permission from the Supreme Court, then approached the Allahabad High Court instead, where it was given permission to begin admission counselling for the college. Near the end of August, the Medical Council of India approached the Supreme Court to appeal the high court’s decision. Throughout, Misra led the Supreme Court bench hearing the matter.
On 4 September, the bench heard a new petition from the trust. The day before that, the CBI recorded a conversation allegedly between a middleman named Vishwanath Agarawala and a former judge named IM Quddusi. Translated transcripts were included in the CJAR petition.
Agarawala: Yes I think, in which is theirs, in which temple is it—Temple of Allahabad or Temple in Delhi?
Quddusi: No no it is not in any temple yet, now it needs to be.
A: Yes yes yes! So now you can talk about it, he will do it. About that I have spoken about it there
Q: Has said for sure (pucca).
A: Yes yes. In that you see this one thing … 100 percent this, our person who is our captain, it is being done through the captain, so what is the problem, tell me?
Quddusi retired as a judge of the Orissa High Court. The court had seen two Public Interest Litigations asking for an investigation into land frauds by government officials in the state—one filed in 1996, and another in 2009. The former petition was dismissed, in 2010, citing the non-appearance of the petitioner—an unusual instance in a country where PILs have been known to stretch on long after the petitioners have died. Quddusi headed the bench that delivered the ruling. The latter petition, heard by BP Das, was the one that prompted the CBI inquiry that detailed Misra’s indictment.
The Misra-led bench listed the case for hearing on 11 September—a Monday. Before that, on 4 September, Agarwala and Quddusi allegedly had another conversation, also recorded by the CBI.
Q: They say they filed their petition. Today they have given a date for Monday. They are asking when—how much will it be and how and secondly how can they believe their work will be done for sure.
A: Are these those medical people?
Q: Yes yes.
A: Yes so the date is listed for the coming Monday?
A: Yes so that is review?
Q: No no, it’s a petition under Article 32.
A: Yes yes yes. There is no such assurance/guarantee. If they give the stuff work would be done 100 percent.
The conversation also involved BP Yadav of the Prasad Education Trust, and appeared to describe payments.
Agarawala: No, the work is not even 100 percent but 500 percent guarantee. But the luggage will have to be given before and he/they is/are saying no to meeting because the government that is going on—Tea-seller’s government. That is watching everyone, that is the problem.
Yadav: No, Prasad will be needed. We will give the prasad. We have to give the Prasad.
A: Work will be done 100 percent, but I won’t go to speak tomorrow or day after. You keep the luggage/stuff ready … if given we people will get it done 100 percent.
Y: Meaning advance will have to be given.
A: Yes, advance has to be given to them/him. Otherwise why will they/he do it, you say. There is no written-reading in these matters. All this runs on belief in this world. They/he will do it 100 percent.
A: On Monday we will finalise. They give us the luggage/stuff (saamaan)—some 2-2.5; no problem some order will be given. … If we are not able to do the work, then we will return the luggage/stuff (saamaan) that is here. There is no chance that work will not be done. There we have spoken clearly, that it will be allowed.
Q: Here, talk to them/him.
A: yes, conversation was clear. Calculated as per three. They/he won’t do it for less than 3.
A: Date is 11th, so if it can reach us by 6-7th, we will get it done. Your work will get done by the 11th.
Y: Do with with 2.5 yaar, my capacity is only till 2.5. Get it done.
The final order in the case was dated 18 September. The bench refused to direct the MCI to approve the college’s application. However, the bench restrained the MCI from encashing a bank guarantee, of Rs 2 crore, that the trust now stood to lose.
The Supreme Court order was uploaded to the court’s website on 21 September. The CBI registered its FIR on 19 September. The CJAR, in a press release, questioned whether the order was dictated in open court during the last hearing, on 18 September, or if it was dictated after the FIR.
The Allahabad High Court, when it earlier permitted the trust to proceed with admission counselling, had also stayed the encashment of the guarantee. The bench that passed the order had been led by a judge named Narayan Shukla. CBI documents alleged that Quddusi and Yadav had met Shukla at his home and “delivered illegal gratification.”
According to the CJAR press release, CBI officers showed transcripts and other documents to Misra on 6 September, and asked for his permission to register an FIR against Shukla. Misra declined. According to taped conversations, Quddusi was pressuring Shukla to return the amount paid to him for a favourable order, since the high court’s go-ahead to the college was overruled by the Supreme Court. If Misra had allowed the CBI to file an FIR, a report on the news website The Wire noted, investigating officers could have caught Shukla red-handed when he returned part of the sum to Quddusi, on 8 September.
Later in September, the CBI arrested Quddusi, Agarawala, Yadav and two others connected to the case. A few months later, acting on the complaints by the advocate general of Uttar Pradesh, Misra ordered an in-house probe against Shukla. The high court judge is now facing impeachment.
THE CJAR’S PETITION for an investigation first came up in the court on 8 November, a Wednesday, when it was mentioned before Chelameswar’s bench. Misra was then busy leading a constitution bench. This was when Chelameswar ordered that the case be heard on Friday by an appropriate bench. Later that day, however, the court’s registry noted that the CJI himself had already listed the case before a two-judge bench on Friday.
On Thursday morning, the lawyer Kamini Jaiswal filed a second petition regarding the same matter. This was again brought before Chelameswar’s bench, which agreed to hear it the same day, at 12.45pm. Misra was again indisposed, on a constitution bench. That bench rose early, at noon.
Shortly after the order was passed, Misra walked into Chelameswar’s chamber, where another judge was also present, to ask, “Brother, what have you done?” Chelameswar replied, “What have I done?” He said he had set up a constitution bench led by the CJI, and if there was nothing to hide Misra had nothing to worry about. There was no answer.
Chelameswar’s bench heard Jaiswal’s petition at 12.45pm, and ordered that it be put before the court’s five most senior judges, on Monday. During this hearing, the registrar arrived in the courtroom to hand the bench an administrative note. It was dated 6 November, and asked Misra for certain directions. In its first point, it asked how to proceed when, while the CJI is sitting on a constitution bench, a matter is mentioned before another bench that then orders it to be listed before a new bench. The note suggested that the registrar could present such matters to the CJI’s bench at 3pm on the same day that they are mentioned, or at any time the CJI prefers, or to any other bench as per the directions of the CJI. Below this, a second point invited “any other direction as Your Lordship may deem fit to pass.” Misra had apparently replied to the note on the same day, favouring the process laid out in the first point.
In a public note about these developments, the CJAR noted that it was curious that “the Registrar should be seeking reiteration of pre-existing standing directions of the Chief Justice of India on the said subject matter.” It also wondered why the administrative note had not been brought to the attention of Chelameswar’s bench earlier. Given the circumstances, the CJAR wrote, “it appears that the administrative note dated 6 November was in fact hurriedly prepared” after noon on 9 November, and was “apparently antedated to 6 November.”
On Friday, the bench hearing the CJAR petition referred the case to a constitution bench. Misra constituted a constitution bench that included himself, but none of his four most senior colleagues, and scheduled it for hearing after lunch on the same day.
The constitution bench never heard the arguments of the petitioners. In a courtroom packed with spectators, Misra solicited the opinion of any advocate present, except for Prashant Bhushan, the counsel for the CJAR. It was, in effect, an invitation to shout Bhushan down.
“Are milords going to pass an order without listening to the petitioner’s arguments?” Bhushan asked the bench at one point. Misra did not even look in his direction. After being denied the chance to make his arguments several times, Bhushan finally walked out. If the justices would not hear the petitioners, he said in parting, they could pass “whatever order they please.”
The order came before 4.30pm, when the court closed. This was when the bench ruled that the CJI “alone has the prerogative to constitute the benches of the court and allocate cases to the benches so constituted.”
THEN CAME THE PETITIONS for an investigation into BH Loya’s death. Arun Mishra, who led the first bench that Misra assigned the case to, was a particularly surprising choice of candidate for hearing it—seeing as the question before the court was whether to look deeper into the death of a judge who was hearing a politically sensitive case against the president of the BJP.
According to an article in the Economic and Political Weekly, when the collegium was earlier considering Mishra’s possible appointment to the Supreme Court, it had asked for a background check, “apparently on Justice Mishra’s proximity or otherwise to a right-wing NGO that treats the Bharatiya Janata Party (BJP) as its political wing”—a reference to the Rashtriya Swayamsevak Sangh. “After being passed over more than once,” the report noted, “Justice Mishra was elevated to the Supreme Court in July 2014, six weeks after Modi took charge as Prime Minister.”
Since being elevated to the Supreme Court, Mishra had done little to counter his image as a BJP sympathiser. At his nephew’s wedding reception, in 2016—judges and lawyers still talk about it in whispers—the guests included the BJP luminaries Arun Jaitley, Rajnath Singh, Vasundhara Raje and Shivraj Singh Chauhan. Chauhan, the chief minister of Madhya Pradesh, has been accused of being the “CM MP” listed in the Sahara Papers—which allegedly show a list of bribes paid by the Sahara conglomerate. Mishra, in 2017, was on a bench that rejected pleas for a court-monitored investigation into the papers.
After Chelameswar, Gogoi, Joseph and Lokur held their press conference, the government’s reaction was to call it an internal matter of the Supreme Court, and state that it would not interfere. The day after it, Nripendra Misra, Modi’s trusted aide and principal secretary, appeared conspicuously parked at the gate to the CJI’s residence. After waiting in vain to be admitted—all the while in full view of cameras—the principal secretary drove away. Some hours later, Nripendra Misra told the media, “On the way to office, I stopped by at CJI’s residence and left my card at gate with Happy New Year greetings. I did not meet the CJI.”
“New Year greetings on 13 January,” a former judge mused when I spoke to him. “Shows the priority and esteem of the CJI in the eyes of the PMO”—the prime minister’s office. Still, the government stuck to its line.
About a week later, the law minister, Ravi Shankar Prasad, wrote an op-ed in the Indian Express, titled, “In the Constitution we trust.” He extolled the greatness of institutions such as the election commission, the judiciary and the media, stated his belief that “Indian democracy has a beauty of its own,” and shared his belief that the nation will “march ahead with confidence.” In over a thousand words, he never once mentioned why he was writing these things in January 2018.
Misra’s only response was the new Supreme Court roster. Under it, he kept to himself all Public Interest Litigation and letter petitions, all matters involving elections and the appointment of constitutional functionaries, and all cases related to commissions of inquiry, among other things. Chelameswar, Gogoi, Joseph and Lokur were kept off of all constitution benches. This left them with no say in numerouvs politically sensitive matters, such as the Loya case, the Aadhaar case and the Babri Masjid case.
After Arun Mishra handed off the Loya case, it went to a bench of Misra, AM Khanwilkar and DY Chandrachud. The state maintained that Loya had died a natural death. In support of this, it presented the report of a “discreet enquiry” conducted by the intelligence department soon after Loya’s family members first went public. It contained statements from four judges who said they were with Loya on his final night.
There were glaring inconsistencies and omissions in the documents submitted by the state, and even the judges’ statements showed contradictions. All the statements in the report were not even recorded as affidavits—meaning none of those who offered them would perjure themselves if they were lying. The very fact that Loya had been hearing the Sohrabuddin trial, after the first judge assigned to it had been transferred, meant that the administrative committee of the Bombay High Court, which was overseeing the trial, was in contempt of the Supreme Court’s order that a single judge see the trial through.
The bench did not issue any notice to the administrative committee, or ask for testimonies to be produced in accordance with Supreme Court rules. Misra spoke little during the hearings, except to assure the petitioners in the case that their bonafides will not be questioned. The bench’s final judgment dismissed the petitions, while agreeing with almost all the submissions of the state. A considerable part of the 114-page document, authored by Chandrachud, was devoted to attacking the bonafides of the petitioners. The bench reasoned that the statements of the judges who said they were with Loya could not be called into question. The statements, the judgment declared, “have a ring of truth.”
As Chandrachud read out the judgment’s operative passages in Court Number 1—the CJIs courtroom—Misra sat with his head tilted, looking at or beyond a framed portrait of HJ Kania, the first Chief Justice of India, who died in office. After the dismissal was pronounced, the room emptied slowly, and there was very little talking as everyone walked out. It was a stunning moment.
Gautam Bhatia, the lawyer, wrote that the ruling “reads like a trial court judgment that has been delivered without a trial.” The court seemed “to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.”
The lawyer Manu Sebastian termed this the “ADM Jabalpur moment of the modern day Supreme Court.” In ADM Jabalpur vs Shivakant Shukla—where, during the Emergency, a bench of the five most senior Supreme Court justices ruled against habeas corpus—there had been a lone dissenter. In the Loya case, the bench was unanimous.
“I was going to say that this is an incredible judgment,” the former BJP leader Arun Shourie told an interviewer. “But it is not a surprising judgment at all.”
The Bar Council of India initiated disciplinary proceedings against Dushyant Dave and Prashant Bhushan, who both argued for an investigation into Loya’s death. Last year, when Dave criticised the working of the collegium on a news channel, the BCI issued a notice against him, and the Supreme Court Bar Association condemned his remarks. The SCBA also criticised the four judges’ press conference, calling the event “ill conceived” and their concerns unsubstantial. Both the SCBA and the BCI have turned hostile against anyone who has expressed concerns over the state of the Supreme Court. The chairman of BCI, Manan Mishra, is a member of the BJP. In 2016, Manan Mishra wrote a letter to “beloved Modi ji,” where he addressed the prime minister as “My Lord,” and declared, “Todays Bar Council of India is your Institution.”
THE COLLEGIUM’S RECOMMENDATION for the elevation of KM Joseph—whose bench, in 2016, quashed the central government’s order to impose president’s rule in Uttarakhand—was returned in late April 2018. The government had received his recommendation—as well as that of another candidate for the Supreme Court, the advocate Indu Malhotra—over three months ago, but had been slow to act. A couple of weeks before the goverment’s reply, Kurian Joseph had written a letter to the CJI, asking him to constitute a bench to look into the delay. The government’s actions, the Supreme Court justice said, were bringing down the “dignity, honour and respect” of the institution, and if the court failed to act, “history will not pardon us.” Eventually, the government cleared only Malhotra’s appointment.
This sort of picking and choosing by the government from the list of names sent to it by the collegium circumvented the purpose of the Second Judges’ Case. Joseph’s case was not the only example. In June, the government returned the recommendations, for a second time, of two lawyers that the collegium had recommended for appointment to the Allahabad High Court two years ago—Basharat Ali Khan and Mohammad Mansoor.
In March, Chelameswar had written to the CJI to protest another long delay in acting on a collegium recommendation. After receiving the file of Krishna Bhat, a judge to be elevated to the Karnataka High Court, the law ministry asked the chief justice of the Karnataka High Court, Dinesh Maheshwari, to look into a prior allegation against Bhat that the collegium had already assessed and overlooked. After that, Maheshwari convened an administrative committee to reinvestigate the issue. Chelameshwar wrote scathingly that Maheshwari had proven himself “more loyal than the King,” and that he “has been gracious enough to inform us, at least now.”
For some time, Chelameswar said, “our unhappy experience has been that the Government’s accepting our recommendations is an exception and sitting on them is the norm. ‘Inconvenient’ but able judges or judges to be are being bypassed through this route.” He added, “We only have to look forward to the time, which may not be far-off if not already here, when the executive directly communicates with the High Courts about the pending cases and what orders to be passed.”
Chelameswar called for a full-court meeting on the situation. Misra did not respond, and no such meeting happened.
TALK OF MISRA’S IMPEACHMENT started soon after the four judges’ press conference, but there was no immediate consensus among the opposition, including within the Congress, to push for it. The day after the Loya judgment, 71 members of the Rajya Sabha met its chairman, Venkaiah Naidu, to hand over a notice of the impeachment motion. Their complaints about Misra included the handling of the Prasad Education Trust cases, the apparent antedating of the administrative note, his assignment of cases in the Supreme Court and the indictment for land fraud. “We wish that this day had never come,” the lawyer and Congress leader Kapil Sibal told a press conference.
Refusing to admit the motion, three days later, Naidu called the charges “mere suspicion, a conjecture or an assumption.” By Naidu’s logic, the charges would have had to be proved in order to be investigated. Even that twisted standard did not diminish the fact that Misra had been indicted for acquiring land by means of fraud, and that this was proven in a judicial order. The charge of abusing his power to assign cases was made by the four people best placed and most qualified to know if bench-packing had been happening at the Supreme Court.
After Naidu rejected the impeachment motion, the opposition parties approached the Supreme Court. Assuming, under the principles of natural justice, that the CJI could not possibly deal with the matter of his own impeachment, Sibal went to Chelameswar. Chelameswar joked that he did not want a repeat of what had happened with Kamini Jaiswal’s petition in the Prasad Education Trust matter, and asked Sibal to come back the next day.
Before that could happen, the petition on the CJI’s impeachment was directed to a constitution bench, and scheduled to be heard the first thing next day. In the morning, Sibal appeared before a bench of AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel. Before he began arguing the merits of the impeachment motion, he had one simple question for the judges: Who constituted this five-judge bench?
“I want a copy of the administrative order directing the formation of this bench,” Sibal told the court. “Never before has a petition been referred to a five-judge bench immediately on filing and by an administrative order … We have to apply our mind to the order and whether it has to be challenged … If Your Lordships say that we may not challenge the order then this order shall be the only order without a challenge in the history of the constitution … the only exception to the rule of law would be an order passed in exercise of the power of the ‘Master of the Roster.’”
The bench told Sibal that his questioning of the administrative order had been noted, and that he should proceed to his arguments. Sibal refused to do that. “We must be provided a copy of that order,” he insisted. “We may question it or we may not question it, but it is our right to have a copy of that order.” The bench again asked him to argue the merits of the case. It went on like this for about half an hour.
“The dignity of this institution is not going to be jeopardised by producing that order milords,” Sibal said at one point, almost in jest. “Will it?”
Atul Dev is a staff writer at The Caravan.