Explainer : Is The FIR Against Rakesh Asthana Invalid Because It Is Based On A Lapsed Provision?

The CBI is caught up in high drama as its No.2 official Rakesh Asthana has been named in an FIR in relation to a corruption case. As soon as the details of FIR got public, social media got abuzz with comments that the FIR was unsustainable as it was registered for an offence which is no longer in existence now – Section 13(1)(d) of the Prevention of Corruption Act,1988, which punishes criminal misconduct by a public servant. This provision is no longer in the Act, as it was substituted with a wholly different provision as per the amendment act passed by Parliament in July 2018.

It has been commented that “this means the FIR against Mr.Asthana is not legally valid and can be quashed”.

Let us examine the merits of this argument.

It is pertinent to note that the allegations in FIR relate back to events which took place in December 2017, when Section 13(1)(d) of the PC Act was in force. So, at the time of the alleged acts, the offence was very much in existence. There is no legal bar in launching investigation after the repeal of an offence with respect to acts which were committed prior to the repeal. The principle that criminal law should not be retrospectively applied is not attracted here, because at the time of commission of the act, it was an offence. A reading of Article 20(1) of the Constitution makes this clear. It says : “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence..”. The bar under Article 20(1) is only against punishing a person for an act which was not an offence at the time of its commission.

Further, the consequences of repeal has been stated in Section 6 of the General Clauses Act,1897. It reads :

Section 6. Effect of repeal:- —Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

• revive anything not in force or existing at the time at which the repeal takes effect;
• affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
• affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
• affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
• affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. (emphasis supplied)

A conjoint reading of Sections 6(c),(d) and (e) will make it clear that the repeal of a provision will not affect any liability already incurred under it, and will not affect any punishment incurred under it, and that any investigation or legal proceeding can be instituted even after the repeal with respect to the liability, and the punishment can be enforced as if the repeal had not taken place, unless a contrary intention is expressed in the repealing Act.

The impact of this provision was considered by a three judges’ bench of Supreme Court in 1954 in State of Punjab vs Mohar Singh. Mohar Singh was prosecuted and punished under a 1948 Ordinance promulgated under the Government of India Act 1935, which pertained to raising false claim as a refugee from East Pakistan.  The issue before the Court was whether Mohar Singh could be punished as per proceedings initiated after the repeal of the Ordinance by a following re-enactment. Holding that Section 6 of the General Clauses Act will apply, the SC held that Mohar Singh could be punished under the Ordinance, even after its repeal.

In the instant case, technically speaking there is no ‘repeal’ of Section 13(1)(d) by the 2018 amendment. Rather, Section 13(1)(d) has been substituted with a new provision. But even in such cases, it will be regarded as ‘repeal’ as per the declaration of SC Constitution Bench in State of Orissa and another v. M/s M.A. Tulloch  that “if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word 'repeal' in the later statute”

Also, omission, insertion, substitution etc. have been recognized as different forms of repeal as per Section 6A of the General Clauses Act.

So, Section 6 of the General Clauses Act will apply in cases of express repeal and also implied repeal by way of omission, substitution etc. However, the Supreme Court had created some confusion as per its decision in General Finance Company & Anr. v. Assistant Commissioner of Income Tax, Punjab, by holding that Section 6 will apply only in cases of ‘repeal’ and not ‘omission’. There, the Court refused to sustain penalty under Section 276DD of the Income Tax, which was imposed after the omission of the section by later amendment. The Court held that Section 6 of General Clauses Act was not applicable, as the Section was not repealed, by omitted. “In the Income Tax Act, S.276DD stood omitted from the Act but not repealed and hence a prosecution could not have been launched or continued by invoking S.6 of the General Clauses Act after its omission”, held the Court, by relying on observations in two precedents- Rayala Corporation (P) Ltd. v. Director of Enforcement, New Delhi & Kolhapur Canesugar Works Ltd. & Anr. v. Union of India & Ors.,  - that Section 6 is applicable only to “repeal” and not “omissions”.

But this view was held to be without legal basis by the SC in Fibre Boards vs Commissioner of Income Tax Bangalore. In Fibre Boards it was held that the view that Section 6 is applicable only to “repeals” and not “omissions” was “per incuriam”, as it was against Section 6A of the General Clauses Act and also the Constitution Bench decision in Tulloch case(supra), which held that repeal can be implied through omission, substitution etc.

This means that it is inconsequential whether the repeal is made expressly, or impliedly through omission, substitution etc. So, Section 6 of General Clauses Act will be applicable to Section 13(1)(d) of PC Act for the acts committed before its substitution by 2018 amendment.

Also, it is to be noted that  the FIR against Asthana is registered for several offences, and not under Section 13(1)(d) alone.  The counsel for the CBI informed the Delhi High Court yesterday that IPC offences under Sections 388 and 389 (extortion), 467 and 468 (forgery), and 471 (forgery of electronic record) are also added in the FIR.

So, the argument that the FIR against Asthana will not be sustainalbe for including a lapsed provision lacks merits.

Published in Live Law on October 24.

Criminal Defamation: A Tool Of Oppression To Shut Out Truth

Provisions like criminal defamation enable those with power and privilege to use law as tool of oppression to shut out truth

Union Minister M J Akbar and film actor Alok Nath -who are caught up in the eye of '#MeToo' storm- have filed criminal complaints for defamation against women who have spoke against them. Though at least 15 women(till date) have come out against M J Akbar regarding acts of sexual harassment committed by him abusing his position as superior at work, he has chosen to go against only one of them- journalist Priya Ramani. Last week, Priya Ramani revealed in twitter that the unnamed person mentioned in the article written by her in "Vogue"  in October 2017, who was stated to be harassing his women subordinates was M J Akbar. This led to opening of floodgates of allegations by several women journalist who have worked under him.

While the allegations against M J Akbar pertain to creation of a hostile work environment through his sexually charged behaviour targeting women subordinates, the allegations against Alok Nath raised by Vinta Nanda are far more serious, attracting ingredients of rape under Section 376 IPC. After the account by Vinta Nanda, well-known actors such as Sandhya Mridul and Amyra Dastur and singer Sona Mohapatra narrated similar experiences from Alok Nath.

In the backdrop of these criminal complaints, it is worthwhile to revisit the debate regarding criminalisation of defamation. Defamation is an offence punishable with imprisonment which may extend up to two years and fine as per Section 500 of Indian Penal Code. On two occasions, the SC had observed that the validity of criminal defamation 'deserved to be examined' in the light of its impact on fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India(R. Rajagopal  v. State of T. N.  1994 (6) SCC 632 & N. Ravi  v. Union of India , 2007 (15) SCC 631). However, in 2016, the Supreme Court repelled the challenge against Sections 499 and 500 of the Indian Penal Code and upheld its constitutionality in Subramanian Swamy v Union of India. The judgment authored by Justice Dipak Misra( as he was then) is a laborious read, and its inscrutable reasoning fails to satisfactorily explain the basic question 'why defamation should be  a crime?'.

Morally repugnant activities which tend to affect social order through its impact on life, limb and property of persons are regarded as crimes. This is the traditional understanding of crime. Violence is abhorred across all cultures, and hence violence against human body is regarded a punishable crime. Likewise, the concept of private property and possession forms the bed rock of most societies(those in the far left spectrum may disagree), and hence acts against properties are regarded as crimes to protect the foundational aspect of society.  Direct and tangible harm to an individual right and the existence of morally dubious state of mind such as dishonesty, criminal intent, fraud etc are the common features of all crimes. Crimes are such acts which a person with robust conscience will not find justifiable under any circumstance. They receive unequivocal condemnation from all members of society. Therefore, the State steps into picture to punish the criminal, though the victim of the crime could be a particular individual; because, it concerns the orderly and tranquil existence of society at large.

However, defamation lacks the standard attributes of a crime. It is a personal injury without any impact on the community. It is noteworthy that it stands out as an odd man in the Indian Penal Code(IPC). Though other IPC offences are neatly classified under different chapters like 'offences against property', 'offences against human body', 'offences against State' etc, Sections 499 and 500 are miscellaneously placed in Chapter XXI which is titled 'Of Defamation'. Even the draftsmen were at a loss to properly classify 'defamation', owing to its ambiguous nature.

There is no denying that loss of reputation is a real harm, regardless of its intangible and perception-based attribute. However, its impact is only person-specific. It does not threat to disrupt social order.  In this context, it is pertinent to refer to Justice Misra's comments about nature of crime in his judgment in Subramanian Swamy case : ""The concept of crime is essentially concerned with social order.".  As per this concept, defamation should be a private wrong, leading to only civil liabilities.

The justification offered by the judgment for making defamation a crime is quite wobbly. It is stated : "Individuals constitute the collective. Law is enacted to protect the societal interest. The law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. Protection of individual right is imperative for social stability in a body polity and that is why the State makes laws relating to crimes. A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large.Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived". To state that every harm to an individual affects society at large is too broad a statement. Applying this logic, any activity which affects an individual should be made a crime.

The judgment also imagined a battle between Article 21 and Article 19(1)(a) of the Constitution, on the premise that right to reputation was part of right to life under Article 21, which has to prevail over right to free speech. It was held : "Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression".  

The judgment does not offer cogent explanation as to how the un-enumerated, penumbral right to reputation can negate the enumerated right to free speech under Article 19(1)(a). This judgment is a rare instant where a stretched interpretation of Article 21 was used to annihilate another fundamental right!

The validity of restriction on free speech ought to have been tested on grounds of reasonableness under Article 19(2). However, the judgment traveled beyond the scope of Article 19(2) to import the concepts of "constitutional fraternity" and 'fundamental duty' to justify criminalisation of defamation. It was observed "We have referred to two concepts, namely, constitutional fraternity and the fundamental duty, as they constitute core constitutional values. Respect for the dignity of another is a constitutional norm". 

The reasonableness of a restriction on right under Article 19 is to be tested on the basis of 'proportionality principle', which was explained by the Constitution Bench in Modern Dental College case. One of the components of proportionality principle is that 'the restriction must be such that it is absolutely necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation'. There exists an alternate relief for defamation in the form of civil action for damages, which causes lesser degree of limitation on the fundamental right. This aspect was not at all seen considered in the judgment. Recently, the Supreme Court of Kenya decriminalised defamation, citing that there is an alternate measure available with lesser infringement.

Another fallacy in criminal defamation is that the threshold of defence is higher than that of civil liability. Mere truthfulness of the statement is not a defence in criminal defamation. The accused has to additionally establish that the publication was justified in for "public good", as per Exception 1 of Section 499 IPC. This is in contrast to the yardstick in civil action for defamation. In Rajagopal case(supra), the SC offered more protection to free speech in defamation action by public officials, by stating that a publication, even if inaccurate, will be protected if it was not made with any actual malice. This was done by the SC by adopting the test laid down by US Supreme Court in New York Times vs. Sullivan. So, the anomaly is that a defence which might succeed in civil defamation may not succeed in criminal defamation.

The judgment also omitted to consider the 'over breadth' of the provision, and its chilling effect on free speech. The doctrine of over breadth considers a statute's "application to real-world conduct, not fanciful hypotheticals". Criminal proceedings have a coercive force, as the accused is forced to make appearance, unlike civil cases. Proceedings can be launched anywhere in the Country, based on the reach of the publication or broadcast. The accused person might have to travel to far flung areas to attend court proceedings of each day. The process itself can wear out the accused person. Knowing this, criminal complaints of defamation are filed very often as a tool of oppression, without any serious intention to convict the person.The process itself becomes the punishment!

The judgment extracted the words of Justice Brandeis in Whitney vs. California that "It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced". The judgment also observed that democracy will not thrive if free speech is curbed. But, these observations did not find any meaningful application in the ultimate result of the case.

It is true that the State has the power to criminalise even those acts which may not be morally repugnant, or may not be having social impact, like dishonour of cheques, default in payment of statutory taxes etc. However, what makes criminal defamation different is its direct impact on a constitutionally guaranteed right of free speech. As opposed to this, one cannot claim a right to default in tax payment or to dishonour a cheque.  Hence, criminal defamation stands on another pedestal, different from 'technical crimes' created by other legislations.

The judgment has omitted to consider these aspects while upholding Sections 499 and 500 IPC. The curious fact is that Justice Dipak Misra, after he became CJI, has authored several judgments which expanded the scope of free speech. It is doubtful whether Subramanian Swamy judgment will hold good in the light of the expansive interpretation given to individual liberties in Navtej Singh Johar and Joseph Shine cases. Also, several jurisdictions across the world have decriminalised defamation. The UK decriminalised it in 2009. Several states of US have repealed criminal defamation. Recently, the Supreme Courts of Kenya and Lesotho struck down criminal defamation as uncosntitutional. In 2003, Sri Lanka emerged as the pioneer in South Asia, repealing its criminal defamation laws, and only allowing for civil suits.

Provisions like criminal defamation enable those with power and privilege to use law as tool of oppression to shut out truth. Criminal defamation laws are mostly used to punish legitimate criticism of powerful people, rather than protect the right to reputation. This deters speaking truth to power. It is hoped that the decision in Subramanian Swamy case will be re-examined in the light of the recent Constitution Bench decisions, which expounded a new jurisprudence of transformative constitution and constitutional morality.

#MeToo is a poignant movement which witnessed women mustering courage to speak out after suffering in silence for years. More than punishment and justice, they were seeking empathy and closure. It is not possible to dismiss all the revelations as concocted and motivated. This movement is also a  pointer to  the deficiencies in the justice system- that it has failed to take women into confidence, due to its male hegemonic character and apparent gender insensitivity. Law has failed to provide them justice and closure; at least law can desist from being an oppressive tool. That much the system owes to the victimised womenfolk!

Published in Live Law on October 17, 2018

Time’s Up To Apply ‘Reasonable Woman’ Test In Sexual Harassment Cases

“A sex-blind ‘reasonable man’ standard tends to be male-biased and tends to systematically ignore the experiences of women.”

“Herland” is a 1915 novel which envisions a utopic world comprising only women. Written by Charlotte Perkins Gilman, the novel conveys that women will be able to establish a society free of conflict, domination and exploitation, if liberated from socially constructed gender stereotypes. There are three male characters in the movie who stumble upon this mystic ‘Herland’, to be stunned by the peaceful and orderly society set up by women, which is totally different from the outside world ruled by men. One can imagine the novel as a catharsis of indignation and resentment felt at the rigid masculine world which makes womanhood feel as a curse. When reality is cruel, one is forced to invent alternate reality through fiction!

The #MeToo movement in social media, where women have opened up about their experiences of sexual harassment by men in power, position and privilege, can be viewed as a similar search for catharsis. As much as the campaign is about justice and punishment of the perpetrator, it is about seeking closure and empathy. The campaign took off the mask of several men from the fields of art, entertainment, media and academia, who used to style themselves as votaries of gender equality and feminism. Several ‘woke’ idols were exposed as desperate predators.

It is also important to take note of certain standard male responses to the campaign. Some expressed that several revelations were just exaggerated twists of ‘normal’ male behaviour, such as a ‘casual’ joke as part of office banter, or a ‘complimentary’ remark on the appearance of a woman, or ‘innocuous’ flirting, or attempts to ‘pursue’ a woman with aim to establish a relationship. When the ‘me too’ campaign hit France, an established French actress commented that the movement was ‘puritanical’ affecting a man’s right to seduce a woman. During the Parliament discussion of 2013 criminal law amendment to make stalking an offence, Sharad Yadav, then an MP, asked “how will boys now woo girls?”

These reactions are reflective of the mainstream culture which places man as a pursuer. They also indicate that there is divergence between male and female perceptions of sexual harassment. Sexual harassment of lesser degree, having no element of blatant lewdness or gross violence, is generally condoned by society. Stalking is romanticised and abusive behaviour is trivialized. It is to address subtle forms of sexual harassment that the law was amended in 2013 to create the offence of sexual harassment.

In a work place, acts of harassment take place in any asymmetrical plane of power dynamics, where a woman’s scope for exercising consent is deeply diluted. Hence, the impact of sexual harassment at workplace is highly aggravated. There is no doubt that sexual harassment at work place acts as sexual discrimination, as it amounts to gender-based barriers on a woman’s professional performance. The ‘Sexual Harassment of Women at Work Place(Prevention, Prohibition and Redressal) Act 2013 states in the preamble itself that sexual harassment violates a woman’s right to equality under Articles 14 and 15 of the Constitution and right to dignity under Article 21, and that right to practise any profession or carry out any trade or occupation under Article 19(1)(g) includes right to a safe environment free from sexual harassment. In this regard, it is pertinent to note the expanded understanding of Article 15(1) made by Justice Chandrachud in his judgments striking down Sections 377 and 497 of IPC, that perpetuation of gender stereotypes amounts to discriminatory behaviour as per Article 15(1). Sexual harassment certainly has patriarchial and paternalistic undertones.

Is there any objective standard for adjudicating an act as sexual harassment at work place? What yardstick should be adopted for determining whether an act has crossed the line? Should law look at the intent of the man( For example a man might say : I was just joking; I might have been over friendly; I misread the situation, etc) or the impact of the act on the woman?

Reasonable Woman Test

The test of “reasonable man of ordinary prudence” is commonly invoked by Courts to adjudicate whether a conduct is reasonable or not. This “reasonable man” denotes a hypothetical person who will exercise average skill, care and discretion. Very often, the “reasonable man” test adopts the views of a middle class traditional male, as most of the judges belong to this category. Applying this standard in cases of sexual harassment may yield unjust results.

The decision of US District Court for Eastern Michigan in Rabidue v. Osceola Refining Co. provides a vivid example of male-oriented application of the reasonable person test. There, the plaintiff alleged that a co-worker continually made vulgar and obscene comments about women generally, sometimes directing them at her. The majority applied the reasonable person standard and held that the defendant's behaviour was not so startling as to seriously affect the psyche of a reasonable person. However, a lone dissenting judge criticised the application of “reasonable man” test, and advocated a “reasonable victim test”.

The dissent argued that the majority’s reasonable person analysis was erroneous since “the reasonable person perspective fails to account for the wide divergence between most women’s views of appropriate sexual conduct and those of men”. Application of this test will “sustain ingrained notions of reasonable behaviours fashioned by the offenders”.

The differences in male and female perspectives regarding what constitutes sexual harassment were commented upon by the US Court of Appeals for First Circuit Court in Lipsett v. University of Puerto Rico. According to the First Circuit, "a male Supervisor might believe that it is legitimate for him to tell a female subordinate that she has a 'great figure' or 'nice legs.' The female subordinate, however, may find such comments offensive."

A transition from this test was made in US Court of Appeals in Ninth Circuit in Kerry Ellison v  Nicholas Brady. In this case, the Ellison complained of hostile work environment created by repeated letters and communications made by her superior at work with strong obsessive undertones. The trial court did not agree that there was sexual harassment, primarily based on the fact that there was no explicit sexual content in the letters, and termed those communications as “isolated and trivial” which will not offend a reasonable person.

The Appellate Court reversed the trial court decision, criticising the reasonable person test as “reinforcing the prevailing level of discrimination”. This test was noted as problematic as it meant that “Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy”.

The court recognized that what men and women find objectionable may differ; therefore, it made sense to consider the circumstances from the victim's perspective in evaluating the severity and pervasiveness of the harassment.

In particular, what a female victim may perceive as offensive behavior may not be perceived as such by the male harasser. Men "may view [such] conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive”. Thus, the Court attempted to close the gap in perceptions between what men and women view as threatening behaviour by adopting the “reasonable woman” standard.

“We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men. Instead, a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men. By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to 'run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living”

Applying this standard, the Court held that a reasonable woman in Ellison’s position would have perceived the superior’s behaviour as harassment, leading to a hostile work environment.

Indian Scenario

While hearing a petition filed by a woman District Judge against sexual harassment by a High Court Judge, the SC made an observation, which indicated its willingness to have a shift in perspective in dealing with sexual harassment. During the course of hearing, the counsel appearing for the High Court described the interjections made by petitioner’s counsel Indira Jaising, Senior Advocate, as “delightful”. This was objected to by Jaising as a sexually coloured remark, and asked whether interjections made by male lawyers were also felt as “delightful”. The SC noted that the verbal exchange between the lawyers and observed : “There is a lot to be learnt, from what she innocuously conveyed. Her sensitivity to the issue, one may confess, brought out to us, a wholly different understanding on the subject. It is, therefore, that we have remarked above, that the evaluation of a charge of sexual harassment, would depend on the manner in which it is perceived. Whether the perception of the harassed individual, was conveyed to the person accused, would be very material, in a case falling in the realm of over - sensitivity. In that case, it would not be open to him thereafter, to defend himself by projecting that he had not sexually harassed the person concerned, because in his understanding the alleged action was unoffending”.

These observations indicate the understanding of the SC that a perception shift will be necessary to understand cases of sexual harassment.

However, the approach of Indian courts towards sexual offences has been informed mostly by male prejudices, especially in decoding consent in sexual offence cases between persons having long standing acquaintance. Last year’s Delhi HC judgment in the Farooqui case is an example. There the Court acquitted the accused in a rape case observing that a “woman’s feeble ‘no’ might mean ‘yes’”. On reading the judgment, one gets the feeling that male perspective trumped all other factors to compel the Court to give benefit of doubt to the accused on ground that he misread the situation to presume consent. The other observations in the judgment to the effect that ‘in normal construct, man initiates sexual acts’, ‘he performs the active part whereas a woman is by and large, non-verbal’, etc seem to suggest that situation was approached and studied only through a male perspective, and that strong gender bias was at play in the judgment. Though the matter required a deeper examination by the SC, it summarily dismissed the appeal challenging the Delhi HC decision.

Likewise, the Punjab and Haryana HC displayed similar insensitivity towards the victim of Jindal Law School rape case, through its uncharitable observations while suspending the sentence of accused. It was observed that the entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades, and a promiscuous and voyeuristic world. The incident of the incident of a woman forced to indulge in sexual acts against her will due to blackmailing was trivialised as adventurism and experimentation in sexual encounters.

In this context, the observations in the Article “Will Women Judges Matter?”, authored by Madame Justice Bertha Wilson, judge, Canadian Supreme Court, are worthy of reference: “The studies show overwhelming evidence that gender-based myths, biases, and stereotypes are deeply embedded in the attitudes of many male judges, as well as in the law itself. Researchers have concluded that gender difference has been a significant factor in judicial decision-making, particularly in the areas of tort law, criminal law, and family law. Further, many have concluded that sexism is the unarticulated underlying premise of many judgments in these areas, and that this is not really surprising having regard to the nature of the society in which the judges themselves have been socialized”.

This underlines the need to bring in woman perspective while handling sexual harassment case. The issue of sexual harassment has a variety of nuanced connotations. Its evaluation should adequately take into account the perception of the victim.  The standard test of ‘reasonable man of ordinary prudence’ is self serving as far as masculine prejudices are concerned, and to sensitively address the issue, it should be perceived from the viewpoint of the victim, with emphasis more on the impact than the intent of the oppressor, at least with respect to civil consequences of sexual harassment. Adjudication of sexual harassment cases based on mechanical application of “reasonable man” standard will miss the gendered context of the case, leading to reinforcement of prevalent gender stereotypes.

Such a gender sensitive approach will ensure that womenfolk will be able to experience justice, peace and order in the real world itself, instead of seeking them in some mystical ‘Herland’.

Published in Live Law on October 13

Bhima Koregaon : Blind Spots Of Majority Judgment

The dissenting judgement outweighs majority judgement in legal and factual reasoning.

It is quite natural that the same set of facts will be perceived differently by different people. This can happen in judicial process too. Instances are galore,where different judges draw different inferences from the same set of facts presented before them. That is why we see appellate courts reversing trial court judgments on facts and judges on a single bench delivering dissenting opinions on factual findings.

All that is fair, so long as these judgmental differences are with respect to same set of facts. However, if one judgment omits to consider certain relevant circumstances in the factual chain which were considered by the other judgment, it will fall short of a fair judicial process. Failing to consider relevant facts is a test of jurisdictional error employed for judicial review. Also, when there is a split in verdict from a bench, it is ideal that the judgments discuss the points of differences in the other judgment(s) and explain the difference. If there is no such discussion of mutual differences, it will mean that there were no internal deliberations between the judges on the bench.

The majority opinion in the Bhima-Koregaon case is such an instance. The majority opinion expressed by Justice A M Khanwilkar,to which Chief Justice Dipak Misra concurred,totally omitted from consideration certain facts which acted as heavy influencers in the dissent of Justice D Y Chandrachud. While the majority opinion is on set of facts ‘A’, the dissenting opinion is on set of facts ‘A+B’. The majority opinion does not care to state why the additional facts ‘B’, which caused the dissent, are not applicable or totally irrelevant for consideration. The majority is blissfully blind to those facts!

The petition filed by Romila Thappar and four others – who are termed ‘illustrious persons in their field’ by the majority- sought an independent enquiry under a Special Investigation Team set up by the Court to investigate the allegations against five arrested activists on the ground that Maharashtra police was highly biased and motivated in the matter.

The arrests of five activists – Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira, Vernon Gonsalves and Varavara Rao - were made by Maharashtra police as part of investigation in FIR No.4/18 of Vishram Bagh PS (Pune City). The FIR alleged that the incidents of violence in Bhima-Koregaon parade held on January 1, 2018 were incited by inflammatory song and dance performances made at the Elgar Parishad meeting held in Pune on December 31,2017 (Justice Chandrachud noted that two retired judhes were associated with the event: one of them, Justice PB Sawant is a former judge of SC and the other Justice BG Kolse Patil is a former judge of the Bombay High Court). It was also alleged that objectionable books and pamphlets were distributed in the meeting. Justice Chandrachud’s judgment notes the petitioners’ submission that the inflammatory speeches referred in the FIR were actually Marathi translation of verses from the German play “The Good Persons of Szechwan” by Betrolt Brecht. The performance by Kabir Kala Manch during the Elgaar Parishad acted on verses from the German play like “When injustice is done there should be a revolt in the city. And if there is no revolt, it were better that the city should perish in fire before the night falls”. 

With respect to the actual incidents of rioting and violence that occurred during Bhima-Koregaon parade on January 1, an FIR was registered on January 2, as FIR No.2/18 of Pimpri Station against Hindutva right wing leaders Sambhaji Bhide and Milind Ekotbe. Six days later, the FIR concerning this case was registered, alleging that provocative song performances in Elgaar Parishad incited violence. A petition is pending in Bombay HC seeking proper investigation into the first FIR, stating that the main accused Sabhaji Bhide is still roaming free.

Police Adventurism Which Stunned Justice Chandrachud

It is pertinent to note that the petition before the SC was not seeking to establish the innocence of the arrested activists. It was a petition for an independent enquiry by a court appointed SIT. Therefore, the issue before the Court was whether the investigation carried out by Maharashtra police was fair, unbiased and unmotivated.

Justice Chandrachud listed several circumstances, which cast a cloud on the ability of Maharashtra police to carry out fair and impartial investigation. The circumstances were :-

• Within hours after the SC admitted the petition on August 29 and stayed the transit of arrested activists from their homes to Pune, the Joint Commissioner of Pune Police addressed a press conference, stating that police had sufficient evidence.
• On August 31, the ADG of Maharashtra police held a press briefing, where several letters were selectively flashed to media to suggest that the arrested activists were involved in a plot to assassinate the Prime Minister.
• These incriminating letters do not form part of the case diary in the investigation against the activists.
• Months before the arrest of Sudha Bharadwaj, a letter attributed to her was flashed in a news channel on July 4, to create the impression that she had links with Maoist organizations.
• These letters have not been produced in any court of law and are not mentioned in the remand applications filed before the Magistrates.
• ASG Thushar Mehta submitted that there was no basis to link the five arrested activists to the alleged plot to assassinate PM. The ASG also submitted that no investigation in that regard is being carried out against the activists.
• Even though there was no allegation on record that the activists were involved in PM assassination plot, the police made an attempt to create a public impression in that regard through their media briefings.
• The ADG appeared in Truth vs Hype program in NDTV on September 1 to admit that the letters were still undergoing forensic analysis.

Based on the above circumstances, Justice Chandrachud held that there was an attempt by the police to tarnish the reputation of the arrested activists by selectively leaking information to media.

“The use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media”, he said.

It may be noted that the revelations made by the police fuelled the narrative that the arrested activists were ‘urban naxals’.

Justice Chandrachud also noted that the investigation,which started as an enquiry into Bhima-Koregaon violence, got deflected with allegations of plot to assassinate PM.

Apart from the above, Justice Chandrachud also dealt with procedural lapses in the arrest and glaring discrepancies in investigation. It was undisputed that none of the five arrested activists were present in the Elgaar Parishad meeting. The judge noted that the panch witnesses who attested arrest were persons from Pune who accompanied Pune police to the places of residence of the activists. It was not disputed before the Court that the witnesses were from Pune who travelled as part of the police team which made the arrest. This was held to be in contravention of Section 41B(b) of the CrPC, which mandate that at least one of the arrest witnesses must be a respectable person form the locality. In this regard, it may be recalled that the Delhi High Court had also observed in the petition of Gautam Navlakha that arrest and remand were carried out in blatant violation of procedure. The High Court also noted that the FIR and documents produced before the Magistrate for transit remand were in Marathi, a language unknown to the accused as well as the Magistrate. The Delhi High Court was about to quash the arrest and remand of Navlakha, and Justice Muralidhar had even started dictating the order. But the proceedings were halted in view of the SC intervention in the meantime.

Justice Chandrachud held that these procedural lapses “bear upon the fairness and impartiality of the process which has been followed by the investigating agency”.

The materials produced by the ASG Thushar Mehta to show that police proceeded on the basis of hard evidence were examined by the Court. Justice Chandrachud noted that the incriminating letters were recovered from laptops of others, and on that basis sweeping conclusions are made that the activists were closely linked with Maoist organization, so as to invoke UAPA. According to him, such allegations amounted to “taking liberties with the truth”. He noted the submission that a letter attributed to Sudha Bharadwaj, allegedly written to a Maoist, was recovered from laptop of another person, and had words in Marathi, which was a language not known to her.

A cumulative effect of above circumstances, especially the selective media revelations made by Police to besmirch the reputation of arrested activists by linking them to an assassination plot which had no mention in the case diary, led Justice Chandrachud to hold that “this is a proper case for the appointment of a Special Investigating Team”

When Majority Chose To Be Blind To Police Excesses

What is surprising in the majority opinion is that it makes no reference to the circumstances listed by Justice Chandrachud. The majority judgment authored by Justice Khanwilkar- who rarely writes judgments in prominent matters- simply makes a curt statement that “no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer”. There is absolutely no reference made to the mischievous press conferences held by Maharashtra police to create an aura that activists were "urban naxals". It is worthy to note that the ASG Thushar Mehta himself admitted in the Court that there is no basis in those allegations. Though the petitioners had filed a rejoinder detailing the instances of press briefings done by police, all those seemed as “vague and unsubstantiated assertion” to Justice Khanwilkar.

The glaring procedural lapses in the arrest- which were noted by Delhi High Court and also Justice Chandrachud- were trivialized by the majority judgment as “some circumstances to question the manner of arrest”.

The majority also concluded that “it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities”.This conclusion would have been acceptable, had the overall conduct of the investigating agency been impartial and fair. But the majority judgment did not even care to at least discuss the circumstances which weighed with Justice Chandrachud. Had there been such an exercise by the majority, the cloud cast on investigating agency would have been totally dispelled. The majority however chose to be blind to those circumstances. The silence in the majority judgment regarding the conduct of Maharashtra police is deafening. When strong circumstances exist showing biased nature of investigation, how can the majority accept the materials unearthed in such an investigation, without dispelling those circumstances? Ideally, the majority should have expressly discarded those circumstances by listing out cogent reasons.

When it is tough confronting reason, embrace technicality – the majority judgment follows this evasive approach. That the accused cannot choose investigating agency is a settled principle. However, in exceptional circumstances, the Court can order change of investigating agency, if there are circumstances to show that investigation is biased. In the Narmada Bai v State of Gujarat  case cited by the majority to state the principle that accused cannot choose investigating agency, the SC ultimately ordered investigation by CBI in a case where the local police had already submitted charge sheet. There are also umpteen instances where the SC has constituted SIT.

The dissenting judgment also explained why the judgments relied on by the majority were not applicable in the present case. The dissent explains why this is an extra-ordinary case warranting judicial intervention. "These proceedings have been moved with a specific grievance that the arrest of the five individuals is an attempt by the state to muzzle dissent and that each of them is being prosecuted for being a defender of persons subjected to human rights violations", Justice Chandrachud noted, endorsing the extraordinary situation of the case.

"The conduct of the Pune police in utilising the agency of the electronic media to cast aspersions on those under investigation fortifies the need for an investigation which is fair. When the Joint Commissioner of Police and the Additional Director General of Police cast aspersions in the public media against persons whose conduct is still under investigation, and in disregard of proceedings pending before a judicial forum, it is the duty and obligation of this Court to ensure that the administration of criminal justice is not derailed", he explained why the Police is appearing to be biased against the activists.

Sadly, such a reasoned approach is absent in the majority judgment, which proceeds on narrow grounds of technicalities.The dissenting judgement far outweighs majority judgement in legal and factual reasoning.

Since the majority does not expressly state reasons to show why the circumstances pointed out by Justice Chandrachud do not cast a shadow on the credibility of Maharashtra police, it is difficult for an objective observer to believe that the investigation conducted by them will be fair. The majority had to exercise extra care and diligence, as draconian provisions under UAPA were involved in the case. The failure of majority to do so can only be termed as judicial abdication.

It may be a cruel coincidence that investigation in an FIR arising from a lyrical rhetoric is fuelled more by imagination than by facts. It might be yet another coincidence that grievance against use of police to muzzle political dissent could only appeal to the lone dissenting judge.

(Published in Live Law on September 29)

What To Expect Of The New CJI Ranjan Gogoi?

At times reformist, at times conformist, at times proactive, at times inactive- Justice Gogoi has exhibited contrasting traits in his judicial career so far.

It might be ironic that the new Chief Justice of India Ranjan Gogoi, who is generally perceived as reticent by the legal fraternity, has made the most ground breaking revelation regarding the administration of Supreme Court this year. His participation in the unprecedented judges' press conference held in January 12 was by itself an act of fortitude, considering the fact that he was the next in line to be the Chief Justice of India, after the then CJI Dipak Misra. So the stakes was high for Justice Gogoi. Not only did he endorse the no-confidence expressed by the other three senior judges regarding the administration of Supreme Court under CJI Dipak Misra, he also gave an indication of the immediate trigger for the press conference.  His reluctant, yet unequivocal "yes" to the query by media whether the press conference was about the Loya case, was indeed a ground breaking revelation.

This gave rise to wide speculation whether Justice Gogoi will be superseded for his seeming act of rebellion against Chief Justice Dipak Misra. However, putting end to the biggest judicial suspense of the year, CJI Misra nominated Justice Gogi as the next Chief Justice of India, following convention. Accepting the nomination, the President has appointed Justice Ranjan Gogoi as the next Chief Justice of India.

Contrasting Shades Of Justice Gogoi

That Justice Gogoi has a reformist spirit is evident from the manner in which the bench headed by him is overseeing the appointment of Lok Pal and constitution of special courts for trial of crimes against legislators. The stern observations made by him during the proceedings in these two cases against the governments' inaction indicates that he is someone who means business. His judgment laying down guidelines for the otherwise opaque process for designation as Senior Advocates indicates that he is not averse to uprooting long standing conventions to bring in transparency. The vigour with his bench is supervising the Assam-NRC issue, often locking horns with the Centre by denying it the copy of the report of NRC co-ordinator, and also by pulling up the NRC Coordinator and Registrar General of India for speaking to media on sub judice issues, indicates an activist streak in him.Last May, the judgment authored by him held that Government Bunglows cannot be set apart for ex-ministers, by striking down a UP amendment, observing that a minister, once he/she demits the office, is at par with the common citizen.

So, his statement in the recent Ramnath Goenka Lecture that "sometimes noisy judges are independent journalists are needed as democracy's first line of defence", is consistent with the activist/reformist character shown in above said cases.

Yet, there are certain other instances, which reveal a status-quoist, risk averse side to his mind.

On 24^th January,2018, the bench headed by him dismissed the plea seeking probe by a Special Investigation Team into the attack of JNU student leader Kanhaiya Kumar which took place in the premises of Patiala House Court during February 2016. Reportedly,Justice Ranjan Gogoi observed “We don’t want to flog a dead horse back into life”.  The court felt that nothing survived in the matter and closed it. As much as it is disappointing, it is also surprising that the court ultimately chose to avoid interference, because it was in stark contrast with the very serious consideration the court had been bestowing upon this issue on all previous occasions since beginning. By failing to condemn the shameful act, the Supreme Court rendered its own directions dead letters and an exercise in futility, and condoned a blatant instance of "mob-justice"

Also, when the Bombay High Court's (Aurangabad Bench) action in constituting a special committee to examine whether the movie "Jolly LLB2" scandalised judiciary was challenged in the Supreme Court, the bench headed by Justice Gogoi declined to interfere. This led to the producers of the film succumbing to the extra-legal demands made by the Court-appointed Committee without any statutory basis. Lawyer-author Gautam Bhatia has criticised this approach taken by Justice Gogoi's bench as "judicial evasion", i.e, a process by which Court allows an illegal situation to subsist by avoiding timely judicial decision. Contrast this with the vibrant approach shown by CJI Misra in the later phase of his tenure to protect freedom of expression from any sort of assault from extra-legal sources, as evident from Padmavat, Meesha and Priya Prakash Warrier cases.

Perhaps, it was the zest to shield the image of judiciary which resulted in inaction in "Jolly LLB2" case. However, this zest had led to an unsavoury episode, when Justice Gogoi's bench issued contempt notice to retired Justice Katju for his criticism of Soumya case judgment. Justice Katju was 'requested' by the bench to appear in Court to make his submissions against the judgment on the basis of his comments in Facebook , in the review proceedings against Soumya case judgment. Unsuspectingly, Justice Katju appeared expecting an academic debate on the judgment; but was served with contempt notice, after an ugly spat between him and Justice Gogoi.

The judgment in Soumya case, where a convict who was awarded death penalty by the High Court and Trial Court for rape and murder of a woman during a train journey was acquitted of murder charges, invited wide criticism. It was a case where legal pedantism trumped commonsensical cause and effect approach to a rape-murder case. Justice Gogoi's judgment relied on a hearsay evidence to hold that the victim had jumped out of train on her own, and disjointly treated the grave injuries inflicted by the accused on the victim, instead of considering the cumulative effect of injuries in causing death. Also, the judgment did not explore whether the mortal fear created by the accused caused the victim to jump out of the moving train. The judgment sent shock waves in the society, and triggered heated debates in legal circles. Anyhow, this is an indication that Justice Gogoi is not one to be wavered by public opinion and media pressure.

Certain Notable Judgments.

The deep erudition of Justice Gogoi is evident from the judgments authored by him in some recent Constitution Bench decisions. In May, he headed the Constitution Bench which settled the law that the measure of levy in Central Excise Act cannot be controlled by its nature. He authored the Constitution Bench judgment which settled the law that ambiguity in tax exemption clauses should go in favour of the revenue. It was also recently held by a Constitution Bench headed by him that benefit of reservation will be not be available to members of SC/ST who migrate to other states.

Justice Gogoi had invoked the concept of "constitutional morality" to state that religious rights are subservient to constitutional parameters (Adi Saiva Sivachariyangal Nala Sangam v. State of T.N. ). It was held that the exclusion from appointment as temple archakas solely on the basis of caste was not constitutionally permissible. The Court also emphasised the importance of Agamas and held that appointment has to be in consonance with Agamas. It was held that so long as the injunctions in Agamas were not contrary to Constitutional parameters, they have to be deferred to.

Within a few months of his appointment as SC judge in 2012, Justice Gogoi had found himself taking a minority position in contrast to that taken by the Chief Justice Altamas Kabir in the challenge to election of Pranab Mukherjee as President.

Pranab Mukherjee’s election as President in 2012 was challenged by Former Lok Sabha PA Sangma  on the grounds that he had been holding an ‘office of profit’ at the time he filed his nomination papers, contrary to the Constitution. A five-judge Constitution Bench including Justice Gogoi was set up to first decide whether the petition was maintainable and needed to have a full hearing.The then CJI and two other judges held that there was no need for a regular hearing, because the offices Mukherjee was alleged to have held at the time – chairman of the Indian Statistical Institute (ISI) and leader of the House in the Lok Sabha – would not be offices of profit in any case. However, Justice Gogoi and Justice Chelameswar dissented.

Justice Gogoi also headed the bench which reviewed the earlier ban imposed by the SC against publication of photographs of politicians in Government advertisements, except those of the Prime Minister. The ban was relaxed to include governors, chief ministers, and where relevant, a specific cabinet minister.

Justice Gogoi headed the bench which held that names of holy books cannot be claimed as trademarks. "The answer to the question as to whether any person can claim the name of a holy or religious book as a trade mark for his goods or services marketed by him is clearly ‘NO’,” he observed. His judgment in the Toyota Prius case, regarding trademark protection for international brands, is an enlightening read to understand the principles of universality and territoriality in trademark law.

The SC bar perceives him as a tough judge having a no-nonsense approach. He is known to be friendly and encouraging towards juniors. He is also perceived as sympathetic to the causes of poor and underprivileged.

What Lies Ahead?

During his tenure as CJI till November 18,2019, he will have to deal with thorny administrative issues like finalization of the Memorandum of Procedure for appointment of judges. One could also expect that he will use his powers as the "maser of roster" to resolve issues in constitution of benches and allocation of cases, especially so since this was one of the major issues which caused discontentment amongst senior judges against CJI Misra.

His  determined character gives an impression that there will be many changes in SC rules and administration. It was the bench headed by Justice Gogoi which passed the order facilitating the establishment of child care facilities. Recently, he was seen in the company of three other  judges making a surprise inspection of SC corridor and premises.

He might also have to deal with the Ram Janmbabhoomi and Article 35A cases, which will assume political significance in the backdrop of Lok Sabha elections 2019.

At times reformist, at times conformist, at times proactive, at times inactive- Justice Gogoi has exhibited contrasting traits in his judicial career so far. Therefore, it will be hard to predict how he will handle the mantle. If his reformist spirit  prevails, it will bring systemic changes for over all betterment of justice delivery. If one goes by his statements in the Ram Nath Goenka Lecture that judiciary needs a revolution than a reform, Justice Gogoi seems to be harbouring a revolutionary spirit as well. It is hoped that his future actions as CJI will be guided by this spirit.

(Published in Live Law on October 3

Will The Real CJI Misra Stand Up?

"A man has as many social selves as there are distinct groups of persons about whose opinion he cares. He generally shows a different side of himself to each of these different groups", William James, American Philosopher & Psychologist.

Chief Justice of India Dipak Misra is demitting office after a tumultuous tenure, leaving behind a mixed legacy. Over his judicial career, CJI Misra was seen stating different things at different times, often contradictory to each other, lending credence to the theory that an individual is a colony of different selves.

For example, this is what Justice Misra said in November 2016 in the national anthem case:

"Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible"(emphasis supplied).

While ordering compulsory playing of national anthem in cinema halls, Justice Misra said that individually perceived notion of rights are not permissible.

Cut to 2018, we see CJI Misra offering paeans to individual autonomy and uniqueness in Navtej Singh Johar case, in a turnaround from the original position that individually perceived notion of rights was not constitutionally permissible.

"Irreplaceability of individuality and identity is grant of respect to self. This realization is one‘s signature and self-determined design. One defines oneself. That is the glorious form of individuality. Autonomy is individualistic. It is expressive of self-determination".

In 2015, while holding that poetic license does not extend to maligning historically respected figures like Gandhi, Justice Misra observed :

"The question would be whether the dramatist can contend that he has used them as symbolic voices to echo the idea of human fallacy and it's a creation of his imagination; and creativity has no limitation and, therefore, there is no obscenity. But, there is a pregnant one, the author has chosen historically respected persons as medium to put into their mouth obscene words and, ergo, the creativity melts into insignificance and obscenity merges into surface even if he had chosen a "target domain". He in his approach has travelled into the field of perversity and moved away from the permissible "target domain", for in the context the historically respected personality matters".

Using similar arguments, his judgment in 2016 upheld the constitutionality of criminal defamation under Section 499/500 IPC.

But in 2018, we see a different self of CJI Misra, who extends maximum possible protection to creative liberties,urging those who felt offended by writings to elevate themselves as a co-author to appreciate the merit of the work. While declining to ban the book "Meesha", Justice Misra observed :

"A creative work has to be read with a matured spirit, catholicity   of   approach,   objective  tolerance  and   a   sense   of acceptability founded on reality that is differently projected but not   with   the   obsessed   idea   of   perversity   that   immediately connects one with the passion of didacticism or, for that matter, perception   of   puritanical   attitude.   A   reader  should   have   the sensibility   to   understand   the   situation   and   appreciate   the character and not draw the conclusion that everything that is written is in bad taste and deliberately so done to pollute the young minds. On   the   contrary,   he/she   should   elevate himself/herself as a co-walker with the author as if there is social   link   and   intellectual   connect"(emphasis supplied).

An evaluation of his judicial career will show Justice Misra de-constructing and reconstructing his dispositions to assume the role of a fierce protector of individualism and liberties, mostly during his tenure as the CJI. Certainly, it is a sign of robust intelligence that one is able to act freely as per demands of the situation, contradicting and varying one’s own previously held views. That is why Oscar Wilde once famously said, "Consistency is the last refuge of the unimaginative".

Is this transformation a result of pure shift in thought or due to extrinsic factors? In this context, it is relevant to refer to the narrative that the liberal mantle adopted by the Supreme Court in mid-eighties was its atonement for the sins of emergency[1]. It is said that Justice P N Bhagwati’s somersault as a liberal crusader of social justice was mostly impelled by his need to expunge the image as someone who succumbed to the executive will during emergency, particularly in the ADM Jabalpur case[2]. Are there similar parallels in the image makeover of Justice Misra?

Volatile Tenure

Justice Dipak Misra’s tenure as CJI from August 28,2017 will be marked as one of  the most volatile phases of the Supreme Court. He would wish to obliterate a lot of events during his tenure from pubic memory, as they are unsavoury to his image.  The most damaging is the “medical college bribery scam”, which surfaced following CBI arrest of Justice I M Quddusi, retired judge of Orissa HC, on the allegation that he accepted bribe to fix a case concerning medical college of Prasad Education Trust at the Supreme Court. The issue got aggravated when it was known that CJI Misra had headed the bench which dealt with the matter. Two petitions were filed in the Supreme Court – one by CJAR & other by Advocate Kamini Jaiswal- seeking an SIT probe into the allegations.

A division bench headed by Justice Chelameswar termed the allegations “grave and serious” and referred the matter to be decided by a bench constituted by five senior-most judges, excluding the CJI. On November 10, the very next day, this order passed by the two-member bench headed by Justice Chelameswar was annulled by a hurriedly formed Constitution Bench led by CJI in a raucous hearing session marred by unprecedented drama. This was the fastest ever Constitution Bench constituted in the SC history, with notice about sitting at afternoon published only at noon. Initially, a bench of seven judges was supposed to hear the matter; later, the composition was reduced to five judges, for reasons inexplicable.

"Master of Roster" Controversy

This marked the beginning of “Master of Roster Controversy”. The annulment order of November 10 was passed by the five judges bench headed by CJI on the ground that CJI was the “master of roster” and hence a division bench headed by the second senior judge could not have constituted a bench to hear the matter. The question whether CJI could constitute a bench to consider a matter concerning allegations against the CJI himself was conveniently left unanswered by the November 10 bench. The unusual order passed on November 10 led to debates on the role of CJI as the “master of roster”.

Many in the legal field feel that these events acted as a catalyst for the extra ordinary press conference of Justice Chelameswar, Justice Gogoi, Justice Lokur and Justice Kurian Joseph on January 12. During the news conference, Justice Chelameswar said that the administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months." Justice Chelameswar said: "We owe a responsibility to the institution and the nation. Our efforts have failed in convincing CJI to take steps to protect the institution."

The press conference highlighted before the general public for the first time the issues regarding arbitrariness in  allocation of cases by CJI. In the letter by the four judges, it was stated as follows:

"There have been instances where cases having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs".

Impeachment Motion

CJI Dipak Misra is the only CJI so far to have faced the threat of impeachment motion. Seventy one opposition MPs of Rajya Sabha moved an impeachment motion against him, over allegations of medical college bribery scam, misuse of ‘master of roster’ power, manipulation with orders issued on administrative side, and also an old case related to furnishing of false affidavit seeking land assignment from Orissa Government. The impeachment motion was rejected by Rajya Sabha Chairman at the threshold. The petition filed against the rejection motion was listed before a bench of five judges of SC. It was not clear who constituted the bench, and how a bench of five judges happened to be constituted at the first instance to hear a fresh petition. The petition was withdrawn after the petitioner’s counsel Kapil Sibal declined to make submission before the five judges’ bench without obtaining clarity as to how the bench happened to be constituted.

Judicial Appointments.

It is also widely felt that during his tenure CJI Misra was not standing up to the undue pressures exerted by the executive in the administrative affairs of judiciary. There was an instance where the Central Government was making interference with the appointment of a judge to the Karnataka High Court, bypassing the SC collegium. The issue got highlighted only when Justice Chelameswar wrote a letter condemning the government interference, and called for a full court meeting to discuss the issue.

Repeated over-turnings of SC collegiums’ re-recommendations by Central Government was a regular fare during his tenure. Though the re-recommendations are binding on the Centre, many of them were ignored. Chief Justice Misra acted pliant, even in the face of such brazenness. When the recommendation of Justice K M Jospeh was returned by the Centre, through an unprecedented act of splitting up of Collegium recommendations, firm reactions were not forthcoming from the CJI Misra. One may recall the strong stand taken by former CJI R M Lodha, when similar attempts were made by the Centre with respect to recommendation of Gopal Subramaniam. With regard to Justice K M Joseph, CJI Misra did not act promptly to reiterate his name, and adjourned the resolution on several occasions. After high suspense, Justice Joseph's name was recommended in August 2018, but along with two other judges, leading to an avoidable fiasco over his seniority.

He also could not resolve the stalemate over finalisation of Memorandum of Procedure for appointment of judges.

While previous CJIs like Justice Lodha, Justice Thakur, and Justice Khehar have been very active in voicing concerns about delay and interferences in judicial appointments, CJI Misra cannot be perceived as someone who actively addressed exceeding executive interference. Under his tenure the SC Collegium has been biting the bullets of repeated executive snubs, sending disconcerting signals about judicial independence.

At the same time, CJI Misra will be remembered for his initiative for publicising collegium resolutions and. bringing in semblance of transparency in collegium meetings.

Liberal-Progressive Judgments

Chief Justice Misra will be certainly remembered for many of his progressive judgments on individual liberties and free speech. CJI Misra’s judgments in Hadiya and Khap Panchayat cases unequivocally state that religious or societal forces do not have any say in an individual's choice of partner, emboldening an individual to love and marry a partner of his/her choice, defying societal and communal pressures. His judgment in Navtej Singh Johar struck down Section 377 of IPC to hold that love should not be circumscribed by gender.  In the judgments declaring the right to die with dignity and also in the verdicts decriminalising homosexuality and adultery, he expounded the theme of “individual autonomy”.

That constitutional morality should guide governance was held by him in the AAP vs Delhi LG case; and that constitutional morality will supersede cultural morality was held in the Sabarimala case.

His judgments in Padmavat, Priya Warrier and Meesha cases reaffirm the guarantee of constitutional protection to creative liberties from perceived offences felt by groups of people.

He should be credited for affirming the transformative nature of Constitution which seeks to transform societal mores in tune with constitutional morality.

CJI Misra’s deep concern for the protection of rule of law can be gathered from his guidelines against mob lynching and public vandalism.

There is a consistent thread of jurisprudence rooted in Constitutional Morality running through all these decisions.

Institutional Reforms

Certain institutional reforms heralded by CJI Misra are noteworthy. He took the decision to publicise collegium resolutions, and to upload them in SC website, to change the opaque nature of collegium meetings. Also, he stopped the practise of 'mentioning' by Senior Advocates, and ordered that it should be done only by Advocates on Record, as per their turn in queue. These decisions show that he is open to change.

He also took the decision to permit carrying mobile phones by  journalists for live reporting. The decision taken by the bench presided by him to allow video telecast of court proceedings is also a ground breaking reform.

In this context, it may also be noted that it was the bench presided by him which ordered that FIRs should be uploaded online by police.

Debatable Judgments In Politically Sensitive Cases.

While CJI Misra should be commended for his progressive judgments and institutional reforms, it is tough to say whether similar zeal was exhibited by him in cases involving political stakes of the ruling front. The major examples are the Loya and Bhima Koregaon cases.

The grievance regarding allotment of Loya case was one of the reasons which triggered the judges’ press conference. The Loya case was later withdrawn by the CJI to his own bench from the bench headed by Justice Arun Mishra. The judgment in Loya case, authored by Justice D Y Chandrachud for the bench headed CJI Misra, left gaping holes of unanswered questions and will remain a low point in the Indian judicial history.

In the Bhima Koregaon case, CJI Misra concurred with the judgment authored by Justice Khanwilkar to turn down plea for SIT probe. However, the majority judgment has several blindspots as it fails to address many relevant issues which were considered by the strongly worded dissent of Justice Chandrachud.

Both the Loya case and Bhima Koregaon case are the ADM Jabalpur moments of modern day SC.

CJI Misra, who is otherwise voluble and proactive in cases concerning civil liberties, chose to maintain inscrutable silence in these two cases.

Giving Room For Intra-Court Appeals

Some of CJI Misra's actions in interfering with orders passed by other Division Benches border on judicial impropriety.

On 27^th October,2017, a Division Bench comprising Justice A.K Goel and Justice U.U Lalit sought the Government’s response, in a petition filed by R.P. Luthra, regarding the steps being taken to finalize the MoP to appoint judges. R.P. Luthra’s petition, later, did not get posted before the same Division Bench that heard the matter first; instead, it was posted before a three judge-bench presided by the CJI. Even the hearing date fixed by the earlier DB was advanced. The CJI-Bench dismissed the matter, recalling the order passed by the Division Bench on 27^th October.

The manner in which the CJI's bench dealt with Section 498A matter is contrary to usual procedure. When a PIL seeking appointment of women members in the Family Welfare Committee proposed by the Division Bench in Rajesh Sharma case was mentioned before the bench of CJI Misra, he expressed disapproval of Rajesh Sharma guidelines, and sought to revisit them in a 2015 PIL filed for strict action under Section 498A IPC. The proceedings were in effect an intra-court appeal against Rajesh Sharma directions. Though the ultimate result of the process - annulment of directions in Rajesh Shamra constituting Family Welfare Committees to scrutinize domestic violence complaints- was widely lauded, the process in which the same was done fails to meet standards of propriety.

Strategic Image Makeover?

The results of the liberal-progressive narrative launched by CJI Misra through his vision of transformative constitution are certainly welcome. However, the controversial background of his judicial career makes one wonder whether it was a strategy for an image makeover, as attempted by the likes of Justice Bhagwati.

A careful examination of the bench composition of the Constitution Bench makes one wonder whether the composition was contrived to force intended results. For example, the benches which dealt with Section 377, Section 497 and Sabarimala cases had Justice Nariman and Justice Chandrachud, who are known to have liberal views.  The Aadhaar bench had Justice A.K Sikri and Justice Ashok Bhushan, who had upheld PAN-Aadaar linkage in Binoy Viswom case earlier. Justice A M Khanwilkar, who is known to be a passive supporter of CJI Misra, was a common presence in all these benches.

The reasons for omitting Justice Nariman, or Justice Bobde and Justice S K Kaul ( who had shown a fine grasp of technical issues related to internet privacy and data protection in Puttuswamy case) from Aadhaar bench are not known. It is also mysterious why Justice Chelameswar, who was part of the original bench which heard the Aadhaar matter and also the privacy case, was not part of the bench which ultimately decided the issue.

Deep probe of these questions are blocked by the declaration made by the bench of CJI that CJI is an institution in himself, who has complete powers to constitute benches as the master of the roster.

So how will history remember CJI Misra?

As a CJI on whom no-confidence was expressed by an open rebellion of four senior judges?

Or, as a CJI who heralded a liberal-progressive narrative of constitutional morality and individual autonomy?

As a CJI who faced allegations of bribery, mismanagement of SC administration and arbitrary allocation of cases of political importance and threat of an impeachment motion?

Or, as a CJI who acted on the transformative vision of constitution to reform social mores and norms superseding conventional morality?

As a CJI who did not impinge on the interests of ruling front in politically sensitive issues, and gave elbow room for the executive to meddle with judicial appointments ?

Or, as an erudite CJI with deep knowledge in all branches of law who was worked round the clock industriously to pen several landmark judgments to protect free speech ,creative liberties and rule of law?

Since it is a tough call to make, one can only go by CJI Misra’s quote of Goethe in Navtej Johar judgment : "I am what I am, so take me as I am".

Footnotes

[1] “An atonement gone too far”, by Arghya Sengupta in The Hindu

[2] “P N Bhagwati’s Legacy : A Controversial Inheritance”, by Anuj Bhuwania in The Hindu

(Published in Live Law on October 1

Referred by Los Angeles Times also)