Going by seniority, Justice J. Dipak Misra is likely to take over as Chief Justice of India (CJI) next year after Justice Khehar. I have reason to find this a matter of some concern.
Recently, the Supreme Court, through a bench led by J. Dipak Misra, mandated the playing of the national anthem before movies in cinema halls. The judgment has received immense criticism because it imposes a particular notion of nationalism on people. However, that's not all. It is important to read the judgment in light of previous orders given by benches led by J. Dipak Misra. Through these previous orders, it can be observed that Misra has consistently curbed freedom through either flawed reasoning or by creating a "chilling effect."
J. Dipak Misra has consistently curbed freedom through either flawed reasoning or by creating a "chilling effect."
In 2015, J. Dipak Misra delivered a highly criticised judgment in the case of Devidas Ramchandra Tuljapurkar v. State of Maharashtra. The case is infamous because of its faulty reasoning and the bench's attempt to unreasonably restrict individual freedom. A poem titled "Gandhi Mala Bhetal"', was published for circulation amongst the members of a private union and the court was faced with the question of whether it was obscene in nature. To determine obscenity, the Supreme Court in 2014 (Aveek Sarkar v. State of West Bengal), used Roth v. US, which held that material shall be considered obscene if it deals with sex in a manner that is appealing to "prurient interest". This came to be known as the "Roth test". Later, the US Supreme Court in Memoirs v. Massachusetts further expanded the position of Roth, by laying down three essential requirements to be fulfilled for a material to be considered obscene. First, the material should be patently offensive, second, it should appeal to prurient interest and third, it should have no social value.
In the case of Devidas, Justice Dipak Misra firstly applied the Roth test without considering all three essentials and ignoring the requirement that the material should be "patently offensive" (where the benchmark for patently was that it should be pornographic in nature). Secondly, in the judgment, the court also came up with a new rule of obscenity holding that a material is obscene if it targets a "historically respected personality". In this case, the poem was about Mahatma Gandhi and the Court without defining the phrase "historically respected personality" went beyond the tenets of Article 19(2) and imposed on us a mandate to accept the "respectability" to Gandhi. A contradiction arose when in the judgment the learned judge himself said that he was aware that "the Constitution does not recognise any personality whether historically or otherwise". By applying a partial Roth test and lowering the threshold especially for "historically respected personalities", the Supreme Court led by Justice Dipak Misra upheld the High Court's conviction under S.292 of the IPC. The court firstly came up with a new and lower benchmark through flawed reasoning to punish people for certain acts while remaining vague and, secondly, it imposed a notion of nationalism by mandating people to accept "respectability" of Mahatma Gandhi.
In the Devidas judgment the learned judge himself said that he was aware that "the Constitution does not recognise any personality whether historically or otherwise."
This is not an isolated case of flawed reasoning or half application of law by the Supreme Court through a bench led by Justice Dipak Misra. In the case of India, Justice Dipak Misra struck down a clause of the make-up artist association's by-laws by looking into the Trade Union Act, where one-half of the statute was read and the other ignored, and through the application of fundamental rights to private associations. In this case, the by-law prohibited women and anyone who had not been a resident of Maharashtra for a period of five years from becoming members of the association and being employed as make-up artists in the film industry. Residency of Maharashtra was domicile requirement and the court's reason to strike it down was that the association was formed under the Tade Union Act and that they could not frame any rules which were inconsistent with that. The Trade Union Act prescribed only an age qualification, affirmed the court, and prescribing an additional requirement of domicile violated the statute. Now, Section 21 of the Trade Union Act actually says, "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." The court by completely ignoring the fact that the Trade Union Act is subject to the by-laws of the union came to the conclusion that "anyone" above the age of 15 has a right to become a member of the association without any further requirement. The second prohibition was that women cannot become a part of the association, and the court went on to conclude that the by-law "also violates the constitutional mandate which postulates that there cannot be any discrimination on the ground of sex." Indeed, the prohibition seems patently discriminatory but such a constitutional mandate and Part III of the Constitution (Article 14 and Article 21) are only on the "State"—the association clearly did not come under the ambit of State. J. Dipak Misra somehow came to the conclusion that a by-law "which is accepted by the statutory authority, cannot play foul of Article 21," applying the same to private associations as well. Here, the court without any analysis or express mention of the horizontal application of fundamental rights, which has always been considered a grey area in Indian law, applied the same indirectly.
By instituting restrictions which are not mandated even implicitly by the Constitution, Justice Dipak Misra is not only taking Indian society backwards but also amending the Constitution.
In May 2016, in the highly criticised case of Subramanian Swamy & Others v. Union of India, Justice Dipak Misra held that right to "reputation" is a fundamental right under Article 21 of the Indian Constitution and it "should not be allowed to be sullied solely because another individual can have its freedom." The law of defamation can be categorised as either civil defamation or criminal defamation (S.499 of IPC). The court, upholding the constitutional validity of S.499, observed that the right to freedom of speech is reasonably restricted to serve the public interest, adding that it would be defamation if it goes against the "reputation" of a person. This judgment was a direct attack on Article 19(2) as it stands, by providing for a disproportionate measure of criminal prosecution when defamation is against "reputation" of a person. In this case, "reputation" was read into an Article where it does not exist. J. Dipak Misra again imposed a narrow outlook towards fundamental rights by imposing an unreasonable restriction and creating a "chilling effect" where due to threat of prosecution, people are afraid to use their right to free speech.
It is important to look back at these judgments today, after the Supreme Court, in a bench led by Justice Dipak Misra, mandated the playing of the national anthem before movies in cinema halls. The Supreme Court forced private media production houses and cinemas to play the national anthem before movies and people to stand up for it, in the process dismissing "any different notion or the perception of individual rights." This clearly violates an individual's rights by mandating him or her to stand for the national anthem, where it should be a choice.
From all the above cases, it can be seen the Justice Dipak Misra believes in a very orthodox version of nationalism that he is imposing on the people as well. This is clear when he says "people should feel that they live in a nation and show respect to the national anthem and the national flag." According to him, people must respect the national anthem in a way he thinks is right.
These judgments, all of which are flawed in their reasoning, show that Justice Dipak Misra has enforced the imposition of a "chilling effect" or his orthodox idea of nationalism. The Constitution of India explicitly guarantees rights (including freedom of speech), but by instituting restrictions which are not mandated even implicitly by the Constitution, Justice Dipak Misra is not only taking Indian society backwards but also amending the Constitution. He is restricting the freedom of individuals by imposing his opinion of nationalism backed by flawed reasoning.