You Cannot Take The Law Into Your Hands Or Become A Law Unto Yourself

His 13-month-long tenure as the 45th Chief Justice of India was eventful. He will always be remembered for some of the most iconic judgments in Indian jurisprudence. Legal Era in a freewheeling chat with Justice Dipak Misra...

Legal Era (LE): Your Lordship, you’ve had a long innings and served as the Chief Justice of the Patna and Delhi High Courts before being elevated to the Supreme Court. Please share an interesting anecdote or two while serving in these capacities.

Justice Dipak Misra: Instead of an anecdote, I would like to refer to a situation which is related to law. I always had an idea that Bollywood was extremely progressive and that their thinking was modern. A matter came before us under Article 32 of the Constitution of India, where a lady made a grievance that though she was qualified to be given a license as makeup artist, she was denied the same and instead given the license of a hairdresser. The only reason shown was that she was a lady. It perplexed me that in such a modern world and progressive movie realm, they had this kind of discrimination. We had to direct for the grant of license to the lady as a makeup artist. Some kind of impediment was created by the Registering Society but eventually, they had to obey the Court’s order and ultimately, she was given the license as a makeup artist.

LE: Under your Lordship, there have been several landmark judgments, not the least of which is recognizing and giving sanction to passive euthanasia. What was the thought process that went into this verdict?

Justice Dipak Misra: This ruling and the thought process behind it has to be oppositely appreciated. We connected it to a

facet of Article 21 of the Constitution which states that right to live is part of Article 21. Right to die is not

part of Article 21 but the right to die with dignity is a part of Article 21. Elaborating that, the bench came up with four opinions – each one gave his own perspective, i.e., sociological, philosophical, spiritual and legal. My view was that dying with dignity is a basic human right. If everyone knows that a person is not going to be cured,

what’s the point of tormenting him/her in the name of treatment. That is where we said that an advance directive can be made and also issued a number of guidelines how the advance directive can be given effect to when the patient is in a vegetative state or how doctors can do it when there is no advance directive. Man, from the very inception of civilization, is innately scared of death. To quote John Dryden, the illustrious English author, “When

I consider life, ‘tis all a cheat; Yet, fooled with hope, men favor the deceit.” This deception is not good. When there is no point of living as there is no chance of being cured, the best is to allow a person to die with dignity. It is the quintessential aspect of the euthanasia judgment.

LE: Related to the euthanasia judgment, there were reports some time ago in a leading tabloid that an elderly couple had requested that they be allowed to die as either was concerned that in the eventuality of death, the other partner would have to face the hardships of life by himself or herself. Please comment.

Justice Dipak Misra: The Court has clearly distinguished and the society must understand the difference between active and passive euthanasia. The couple may be tired of life or facing some kind of passivity but they cannot end their life like that. We have only permitted passive euthanasia because that really speaks of dignity in the process of dying.

LE: Another landmark judgment under your baton was the decriminalization of homosexuality. However, the

opinion has been divided on this verdict, with many, especially from the LGBTQ community, welcoming it, and many others opposing it on grounds of morality. Please comment.

Justice Dipak Misra: The answer is stated in the judgment itself. A two-Judge bench in 2013 in the Koushal case was guided by a majoritarian principle. We were not to be guided by the concept of arithmetical numbers but by the conception of fundamental rights of an individual as the Constitution recognizes these rights. When a Court recognizes a right, there is no condescension. The Court does justice. These people, it was felt, were being discriminated against without any reason. They were born like this; that is why, there is a line in the judgment saying, “What nature gives is natural”.

That apart, the Court highlighted as regards the

identity. The Court said, “Identity is divinity”. The Court also emphasized that popular or societal morality does not govern the verdict of a constitutional court. What governs a constitutional court is constitutional morality. The Court recognized the rights of the LGBTQ community as their natural rights, which constitutional morality accepts and sustains. Their identity must be accepted by all and they must be able to say proudly that they are what they are and everyone should accept what they are. That is the essence of human rights.

LE: A ruling that almost came on the back of the homosexuality judgment was declaring the 158-year-old Section 497 of the IPC criminalizing adultery as unconstitutional. Please comment.

Justice Dipak Misra: Section 497 of the IPC has been declared as unconstitutional as it defeats constitutional norms and provisions. Emphasis was laid on the drafting of the provision and how the provision was treating the woman as chattel. Apart from being archaic, it was absolutely contrary to the constitutional provisions. Therefore, it was required to be declared ultra vires. That is one aspect. While dealing with that, it was argued before us that such an act should not be treated as a criminal offense. The majority judgment has expressed the view that such an offense goes to the core private nature of two individuals and further, there cannot be imposition of loyalty on one by the other. It was touching the deepest level of private relationship. It is a civil wrong and already recognized as a civil wrong and a ground for divorce. Therefore, the Court held that such an act should not come within the ambit and sweep of a criminal offense.

LE: Sanjay Leela Bhansali’s ‘Padmaavat’ stirred huge controversy to the extent that some States even banned its filming in theaters. However, you stayed the ban. What was the thought process that went into this order?

Justice Dipak Misra: The movie had obtained the requisite certificate as per the law. However, a few States banned the movie. After a movie has got the certificate and has been projected before us to have been based on a poem, there was no justification for the States to ban the movie. The principal factor is that every

creative artist or, for that matter, every person has the freedom of right of speech and expression. A movie is an expression of an idea on celluloid. Someone did it in a poem; someone did it in celluloid. You can’t really frustrate someone’s freedom of expression and smother the creative intellect.

LE: You ruled that there can be no compromise in rape cases. Please elaborate.

Justice Dipak Misra: The controversy had arisen as the High Court had allowed a compromise. But the basic issue is, you cannot indignify a person in such a manner, i.e., commit the crime of rape and then say you intend to compromise by getting into wedlock. This is an imposition or accepting a person under compulsion.

Compelling a person to do such an act is inconceivable. It may happen in someone’s imagination while writing a fiction but I have spoken strongly against the act of compromise. I was very strong in my views when we crafted this judgment.

LE: In the wake of increasing instances of mob lynching, vigilantism, a Supreme Court bench headed by your Lordship told Parliament to consider creating a new penal provision to deal with them. Please comment.

Justice Dipak Misra: When this matter came before us, we issued preventive, punitive, compensatory and other guidelines. We said that something may be an offense or a crime but no one can take the law into his/her hands or become a law unto himself/herself. There is a law enforcement agency that looks after the law and order situation and when others take over, they actually create anarchy and indulge in criminality. It is wholly impermissible.

LE: In the Voluntary Health Association versus the State of Punjab case, a division bench of the Supreme Court constituted by your Lordship and Justice Shiva Kirti Singh ruled that it needs no special emphasis that a female child is entitled to enjoy equal right that a male child is allowed to have. Please comment in the light of increasing instances of female foeticide on the one hand and campaigns like ‘Beti Bachao, Beti Padhao’ on the other.

Justice Dipak Misra: There are two judgments. The first one is a concurring opinion I wrote while the second is the ruling I authored. There is a law that there cannot be any sonography or ultrasound to

identify the sex of the foetus, barring in certain circumstances. You cannot identify the sex of a foetus and ultimately destroy it. When a mother who is a woman carries a female foetus (would-be woman) and allows it to be destroyed, it is tragic. Neither the scriptures nor the philosophy of life nor the law would ever agree with this. This is absolutely deprecable and we expressed strongly against it. Identifying the sex of a foetus has affected the sex ratio and after we passed a few orders, the sex ratio increased.

That apart, the slogan of ‘Beti Bachao, Beti Padhao’ came up to awaken the society that a girl is equal to a boy. Society must understand that the girl child is equal to the male child.

She is, in no way, less. If the society rises to the occasion,

this kind of attitude will get crucified and the sex ratio will increase; and we will celebrate the concept of equality.

LE: A special bench of the Supreme Court led by your Lordship last year pronounced verdict on the appeals filed by Tamil Nadu, Karnataka and Kerala against the final award of the Cauvery Waters Tribunal in 2007 on

allocation of water to them. The bench noted that Karnataka was entitled to marginal relief and reduced the allocation to Tamil Nadu by 14.75 TMC, ruling that there was no perversity in the Tribunal’s allocation of water to Tamil Nadu. Please comment.

Justice Dipak Misra: You must appreciate that the Supreme Court was dealing with the justifiability of an award passed by the River Tribunal. Initially, the Central Government raised the plea that the

Supreme Court had no jurisdiction because of Article 262 of the Constitution. The Court answered that it had jurisdiction under Article 136 of the Constitution. Thereafter, the matter was dealt with on merit. This was the first time the Supreme Court was dealing with such a matter. Various issues were raised and answered. Coming to the judgment, the bench noted that a river is a national asset and no State, whether Karnataka, Tamil Nadu or Kerala, can claim it. Thereafter, the question of distribution of the river water was dealt with. A contention was put forth on behalf of the State of Karnataka that Bengaluru does not have adequate drinking water. It was countered by saying that it was not in proximity of the basin as a part of the city had been extended which should have been curtailed by the State of Karnataka. As a constitutional court, dealing with a river dispute involves the State’s inhabitants and drinking water is the most important thing. We could not have ignored the need of the inhabitants

of Bengaluru. Accordingly, we enhanced the allocation of the Cauvery water to Karnataka by 14.75 TMC.

LE: Your Lordship, you are very learned in the shastras and are very often known to quote from them in your judgments. Please comment.

Justice Dipak Misra: Quite often, I have stated about traffic rules – about who has the first right to the road. I have narrated this to students and lawyers about our ancients thought. Ashtavakra narrated the following shloka to Raja Janak as he felt that the latter had violated the traffic rules: “Andhasyapanthaha, badhirasyapanthaha, bharbahasyapanthaha, streerupanthaha, rajyaha panthaha”, which means that the first right on the road is that of a blind man, the second right is that of a deaf man, the third right is that of a man carrying the load, the fourth right is that of a lady, and the fifth right is that of a king. These were the priorities thought so many centuries ago.

LE: LE: What do you like to do in your pastime?

Justice Dipak Misra: I do not have a consistent pastime. However, I prefer to read books of all kinds. The purpose is to get new ideas. Sometimes, I like to watch a movie. There are days when I compose a poem and there are days when I write a piece of prose that gives me pleasure. At times, I think of something from my school or college life which takes me in a time machine and puts me in the path of nostalgia. Many may feel these are not hobbies but I would consider them as hobbies. Everyone remembers the house they were born, the school they went to. In my case, I came to know much later that the school where I studied was established in 1884. I always feel that small wavelets in a pond can make you feel like swimming in it or just seeing it on a sunny afternoon. That is a pleasant memory. That is nostalgia. Nostalgia should not create any kind of disturbance – I don’t allow room to that kind of nostalgia but only allow space to that kind of memory that creates exuberance and makes me energetic. I have always maintained the stance of an incurable optimist.