From Sabarimala to Hadiya: Justice Misra relives orders
NEW DELHI: Former Chief Justice Dipak Misra emphasised the primacy of constitutional sovereignty and morality at the Hindustan Times Leadership Summit on Friday as he linked the concepts to landmark judgments delivered during his tenure, including verdicts to allow women of all ages to enter the Sabarimala hill shrine, decriminalising same-sex intercourse, and upholding the validity of Kerala woman Hadiya’s marriage.
Justice Misra, who retired as the 45th Chief Justice of India (CJI) this week, has presided over several important cases, and has been part of Supreme Court benches that have delivered key judgments during his 13-month tenure.
“It is the constitutional sovereignty which matters and that is
› It is constitutional sovereignty which matters and that is primary. All other powers ... must adhere and follow the conceptual essence of constitutional morality DIPAK MISRA, Former CJI
primary. All other powers — let it be parliamentary, legislative power or the citizenry concept of power or empowerment — must adhere and follow the conceptual essence of constitutional morality,” Justice Misra said.
“It is the Constitution from which the three organs of the state, namely, the legislature, executive and judiciary derive their authority,” he added.
On the Supreme Court’s decision in the Sabarimala case, Justice Misra said the apex court made it clear that the notions of public order, morality and health could not be used “as colourable devices to restrict the freedom of women to freely practise religion and discriminate against them...”
Justice Misra said that after the verdict an article described him as a “warrior of gender justice”. “I feel happy that I am a warrior of gender justice,” he added. He also said “where woman is respected, there lies the home.”
“I do not mean that she becomes a housewife. What I mean is that she is an equal partner in life,” he added.
Justice Misra said constitutional morality scripted the contours of the right of homosexuals, with social morality not being allowed to dictate the fundamental liberties of the LGBT community. “The magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude that ushers in a pluralistic and inclusive society,” he said.
He also spoke about the spike in incidents of mob lynching in the country, asking how a man or a group could indulge in moral policing when there was a robust independent judiciary in the country. “We must cultivate the idea of tolerance,” he said, adding that the mobs can’t become a law unto themselves. He also said that public morality cannot control constitutional morality.
The former CJI also brought up the Supreme Court case over a power tussle between the Delhi government and the Centre. “Both the constitutional functionaries... are required to show constitutional behaviour, constitutional trust, constitutional expectation and be guided by the constitutional morality, so that you can have constitutional governance,” he said, adding that he did not intend to name the two parties. “In a country like ours, it’s the constitutional governance which has to reign supreme. Not your will or my will, not his will or her will.”
The Supreme Court ruled this July that the Lieutenant Governor (LG) in Delhi was bound by the Constitution to listen to the national Capital’s democratically elected government, but left some key areas for another bench to deliberate on.
Referring to a 2013 case of corruption charges against an individual, Justice Misra said the court did not grant him relief because there can’t be degrees of graft.
He also spoke about the importance of constitutional morality in cases pertaining to politics. “(In the case of questions over the possible appointment of Manoj Narula as a minister) the court held that it is not for the judiciary to introduce any disqualification… It left it (the case) to the wisdom of the Prime Minister in whom the Constitution reposes immense trust.”
In the case of Shafin Jahan, popularly known as the Hadiya case, Justice Misra said the court observed that it was important to remember that “the choice of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees.” In March this year, the Supreme Court upheld the validity of the marriage of Hadiya, a Kerala woman who converted to Islam and wed a Muslim man, overturning a Kerala HC order that annulled their marital union as a sham.
Speaking about the aspect of constitutional morality in a case of a diktat by a khap panchayat, Justice Misra said: “Class honour, howsoever perceived, cannot smother the choice of an individual which he or she is entitled to enjoy under our compassionate.”
He asked people present at the summit to be “incurable optimists”.
I would like everyone present at in this gathering to be an incurable optimist and inculcate the tendency to search for the silver lining amidst grey clouds. When I say so, I intend to convey that everyone should embrace the virtue of constitutional morality that political conditions for the realisation of social equality can be achieved.”