From Section 377 to Aadhaar: 5 key judgments by CJI Dipak Misra

On October 2, 2108, Chief Justice of India Dipak Misra will demit office.

As Chief Justice of India, Misra has passed various judgments on important cases, ranging from the one on the constitutional validity of Aadhaar to the case on the entry of women into the Sabarimala temple.

Misra's last working day will be October 1 as the apex court will not be functioning the following day on the occasion of Gandhi Jayanti.

Ahead of his final day as the head of the judiciary of India, here's a look at the key judgments that he was a part of:-

Section 377

‘Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life as the herald of a New India to a more inclusive society.’

Theses lines were penned by Chief Justice Dipak Misra along with Justice A M Khanwilkar in the historic judgment which ruled that consensual gay sex is not a crime.

While decriminalising a part of Section 377 of the Indian Penal Code, the CJI in the main 166-page judgment observed that ‘denial of self-expression is inviting death’.

The CJI used the privacy judgment in demolishing the 2013 verdict of the apex court that had re-criminalised the consensual sexual acts between two adults on the ground that the rights of "miniscule" minority was being infringed.

"After the privacy judgment..., the right to privacy has been raised to the pedestal of a fundamental right. The reasoning in Suresh Koushal (verdict), that only a minuscule fraction of the total population comprises of LGBT community, and that the existence of Section 377 IPC abridges the fundamental rights of a very minuscule percentage of the total populace, is found to be a discordant note," he said.

"The said reasoning in Suresh Koushal, in our opinion, is fallacious, for the framers of our Constitution could have never intended that the fundamental rights shall be extended for the benefit of the majority only and that the Courts ought to interfere only when the fundamental rights of a large percentage of the total populace is affected..." he added. 

Adultery

Declaring that adultery is not a crime, a Supreme Court bench, headed by Chief Justice of India Dipak Misra, on October, 27, 2018, struck down a colonial-era anti-adultery law, saying it was unconstitutional, and treated women as "chattel of husbands".

Adultery as an offence treats a woman as "chattel" and "dents" her individual dignity as it emphasises that the husband's connivance or consent to her extramarital relationship does not result in a crime, said CJI Misra while writing the judgment for himself and Justice Khanwilkar.

The CJI said that the section was "manifestly arbitrary", archaic and violative of the rights to equality and equal opportunity to women.

The CJI also added that "a husband is not the master" and any system treating a woman with indignity, inequity and inequality or discrimination "invites the wrath of the Constitution".

Aadhaar

Observing that Aadhaar neither tends to create a ‘surveillance state’, nor it infringed the Right to Privacy, a five-judge constitution bench headed by CJI Misra, declared that the Centre's biometric identity project was constitutionally valid  but limited the scope, ruling it is not mandatory for bank accounts, mobile connections or school admissions.

The submission that Aadhaar violated Right to Privacy did not cut much ice as the bench said, "It is held that all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21."

In a 4-1 verdict that also quashed some contentious provisions of the Aadhaar act, however, held Aadhaar would remain compulsory for filing of income tax returns and allotment of permanent account mumber and for availing facilities of welfare schemes and government subsidies.

The verdict also struck down sections 33(1) which allowed the Unique Identification Authority of India to release information saying it cannot be done without an opportunity of hearing.

Live-streaming of court proceedings

Taking a major leap in imparting transparency in the functioning of the judiciary, a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, allowed the live streaming of court proceedings of cases of constitutional and national importance.

Justice Khanwilkar, who penned the verdict for the CJI and himself, said, "In recognizing that court proceedings ought to be live streamed, this court is mindful of and has strived to balance the various interests regarding administration of justice, including open justice, dignity and privacy of the participants to the proceedings and the majesty and decorum of the Courts".

Highlighting the contours of the live-streaming mechanism, he said, "To begin with, only a specified category of cases or cases of constitutional and national importance being argued for final hearing before the Constitution Bench be live streamed as a pilot project".

The bench said that for live-streaming, the permission of the concerned court will have to be sought in writing, in advance, in conformity with the prescribed procedure.

The bench, however, said that 'the concerned court would retain its power to revoke the permission at any stage of the proceedings suo motu (on its own) or on an application filed by any party to the proceeding, if the situation so warrants'.

Ayodhya

A three judge bench headed by Chief Justice Dipak Misra, by a majority of 2:1 declined to set up a larger bench for a relook of its 1994 verdict which held a "mosque is not an essential part of the practice of Islam" paving the way for the apex court to hear the politically sensitive main Ayodhya title suit from October 29.

The majority judgment said now the civil suit on land dispute will be heard by a newly-constituted three-judge bench in view of Misra's retirement.

Sabarimala

Penning his last verdict of a five-judge constitution bench, Chief Justice Dipak Misra, on September 28, 2018, lifted a ban that prevented women and girls between the age of 10 and 50 from entering the famous Sabarimala temple in Kerala.

The CJI, who wrote 95 page-verdict for himself and Justice A M Khanwilkar, said that on the ground of public order, morality and health, women cannot be barred from practising and professing the faith.

"There is inequality on the path of approach to understand the divinity. The attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender," the CJI said.

The CJI rejected the plea that the Temple Board was protected under Article 26 (freedom to manage religious affairs) as the devotees formed a separate religious denomination.

"There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. We have also been apprised that there are other temples for Lord Ayyappa and there is no such prohibition. Therefore, there is no identified sect.

The CJI said that Article 25(1) would become a "dead letter" if women are excluded from practising their right to worship and set aside the Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.

"The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion," Justice Misra said.

"The impugned Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entity of women of the age group of 10 to 50 years, is a clear violation of the right of Hindu women to practise their religious beliefs 93 which, in consequence, makes their fundamental right of religion under Article 25(1) a dead letter," Justice Misra added.

The CJI said that the practice of excluding women of the age group of 10 to 50 years "cannot be regarded as an essential part of religion" and hence cannot be protected.