Spotlight is a series where we shine the, well, spotlight on members of the legal fraternity who made the news over the past week..For rather unfortunate reasons, the spotlight this week found former Chief Justice of India Dipak Misra, and consequently, the sorry state of arbitration in India..On April 8, the Court of Appeal of the Singapore Supreme Court upheld the setting aside of an arbitral award passed by a tribunal led by former Justice Misra. The reason? 47 percent of the award's contents, that is 212 out of 451 paragraphs, were found to have been copied verbatim from two of his prior awards.The arbitral tribunal in this case also comprised former Madhya Pradesh High Court judge Justice Krishn Kumar Lahoti and former Jammu & Kashmir High Court Chief Justice Gita Mittal, who were not part of the previous awards..The Court of Appeal said that by using previous awards as templates, the President (Justice Misra) created a strong appearance of prejudgment. The extensive copying - nearly half the award - made it reasonable to suspect the tribunal had not truly considered the unique aspects of this case on its merits, it was held.As only the Justice Misra had knowledge of the parallel arbitration, the co-arbitrators were placed in an unequal position, undermining the integrity of the decision-making process, the Court found. It also ruled that the award had to be set aside to safeguard the integrity and fairness of the arbitral process itself. .Indian courts would likely have desisted from naming a former CJI while setting aside an arbitral award passed by him. But the Singapore Court's actions have made it impossible for the legal community to turn a blind eye to the issues plaguing Indian arbitration.Bar & Bench spoke to active arbitrators in India. While no one was willing to speak on the record, the common sentiment was that this was shameful - for both Indian arbitration and the Indian judiciary..Who is Justice Misra?.Justice Misra enrolled as an Advocate on February 14, 1977. He was appointed as an additional judge of the Orissa High Court in 1996 and was transferred to the Madhya Pradesh High Court in 1997. He became a permanent Judge in December 1997. He assumed charge as Chief Justice of the Patna High Court in 2009 and later became Chief Justice of the Delhi High Court in 2010. He was elevated to the Supreme Court in 2011 and on August 28, 2017, he was appointed as Chief Justice of India. After a tenure of nearly 14 months, Justice Misra retired from office on August 27..Important Judgments.A five-judge Constitution Bench headed by CJI Misra passed the landmark judgment which held that women, irrespective of their age, have the right to enter the Sabarimala Temple in Kerala. The judgment primarily held that the custom violated the fundamental right to freedom of religion of female worshippers.While the judgment is now under review and pending hearing by a nine-judge bench, its impact on the discourse around essential religious practices and rights of women was significant..A bench headed by Justice Misra also confirmed the death penalty for the four accused in the infamous 2012 Delhi gang rape and murder case also known as Nirbhaya case.In sharp contrast to the stance of an earlier bench hearing the matter, the three-judge bench presided by Justice Misra decided to afford full opportunity to the convicts in the 2012 Delhi gang rape to present their case and hear the matter “like a trial judge”..Impact.The Good.As CJI, Justice Misra urged Chief Justices of all High Courts to constitute special benches on Saturdays to hear pending criminal appeals in which legal aid counsel have been provided.He wrote letters to all the High Court Chief Justices highlighting the backlog of cases how it raises question about the efficacy of criminal justice system..In 2017, the Supreme Court Collegium took a significant step towards bringing about transparency in appointments to higher judiciary. The Collegium headed by then CJI Misra passed a resolution stating that the decisions taken by the Collegium shall be put out on the website of the Supreme Court.Until then, for over 24 years, the Collegium never gave any official statements about its decisions and the public got to know about the appointments and transfers of judges only through selective disclosures to certain newspapers. This changed with the decision of CJI Misra to put out Collegium decisions in the public domain. Initially, such Collegium statements published on the Court website contained reasons for appointing or denying appointment to judges. While subsequent CJIs dispensed with the practice of furnishing reasons in Collegium resolutions, the decisions taken by the judges' body are still put in the public domain. .The Bad.In a rare instance of a judge speaking up against a Collegium decision, retiring Allahabad High Court Chief Justice Pritinker Diwaker in 2023 said that his transfer from the Chhattisgarh High Court to the Allahabad High Court in 2018 by the Collegium headed by then CJI Misra, was ill-intentioned and done to harass him."Chief Justice of India Dipak Misra showered on me some extra affection for the reasons still not known to me...My transfer order seems to have been issued with an ill-intention to harass me," he said in his farewell speech.Some of CJI Misra's judgments also attracted a fair share of criticism - some on the merits of the decisions and many of them on the convoluted language employed by the judge. CJI Misra was part of a three-judge Bench which rejected a plea seeking the constitution of a Special Investigation Team (SIT) to probe the arrests of lawyers and activists made in connection with the Bhima Koregaon violence. Justice AM Khanwilkar had written the majority opinion on behalf of himself and Justice Misra.However, Justice DY Chandrachud who was the third judge on the Bench, penned a strong dissent. The petition had been filed by historian Romila Thapar and four other activists and the Maharashtra government had questioned its maintainability..The Ugly.Justice Misra's tenure as CJI coincided with the time when the public impression of the independence of the judiciary visibly took a downward turn. His 14-month tenure was severely marred by allegations of bias and outright corruption. It came to light most clearly when the Court was hearing the medical college corruption case, which involved the opening of medical colleges in Uttar Pradesh at the behest of, and under the offer of bribes from, the Prasad Education Trust. CJI Misra was widely believed to have had some involvement in the case.When a different bench of the Supreme Court started hearing a petition related to the matter, CJI Misra set up a Constitution Bench headed by himself, and annulled the order passed by the earlier bench. Since there is no provision of intra-court appeals in the Supreme Court, the move was highly irregular and raised eyebrows. .In this backdrop, four of the senior most judges of the Supreme Court - Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph - held an unprecedented press conference raising various grievances against CJI Misra. Their allegations primarily centered around the CJI's powers as master of the roster and how CJI Misra has been misusing the same to allocate cases to certain favourable Benches, especially in matters in which interests of the government or its functionaries were involved.The allocation of the case concerning death of Judge Loya to a Bench involving Justice Arun Mishra was said to be the trigger for the press conference.The said matter was later heard by a Bench headed by CJI Misra himself. The Bench dismissed the plea for an independent probe into the death of Judge Loya and also came down heavily upon the petitioners and their counsel - Senior Advocates Dushyant Dave and Indira Jaising, Advocate Prashant Bhushan and others - for what it termed as scandalising the judiciary and judges and for misusing PIL jurisdiction to settle political scores..Just a few months before his retirement, the Indian National Congress initiated the process for the impeachment of CJI Misra. The draft motion for impeachment focused on five charges as grounds for impeachment. The first three charges concerned the controversial sequence of events in the medical college corruption case. The fourth charge was regarding the delay in surrendering land that may have been acquired by him fraudulently, before his elevation to the Bench.The fifth charge echoed concerns raised in the judges press conference, concerning improprieties in the allocation of cases to Benches.However, the motion failed to gain momentum as the then Rajya Sabha chairman M Venkaiah Naidu rejected the impeachment notice. This decision was challenged before the Supreme Court, but the petition was withdrawn after the Constitution Bench set up to hear the case refused to give details of the administrative order constituting the Bench..After retirement, CJI Misra has consistently kept himself away from the limelight. Neither did he take up any post-retirement position nor did he make himself available for interviews with the media.However, this latest "copy paste" saga has thrust him back into spotlight, albeit unwillingly.
