"Justice [Gyan Sudha] Misra, who although sat a little after the scheduled time, never compromised by rising just after half-an-hour. She was the last one to leave the court premises, be it the Supreme Court or High Court. There were absolutely no cause-lists that were not exhausted by her and no judgments that were not churned out by her,” wrote her daughter, advocate Unnati Misra, in a letter to attorney general Mukul Rohatgi, as reported by the Indian Express’s Utkarsh Anand.
She was referring to Rohatgi’s repeated attacks on now retired Supreme Court judge Justice Misra’s habit of coming late to court as a notable example of a bad appointment made by the collegium, in his argument for the National Judicial Appointments Commission (NJAC) before the Supreme Court, saying he had “run down the reputation of people who have given their sweat and blood to judicial institutions, all in the name of NJAC, are reflective of bias and based on superficiality”.
However, Unnati Misra said that her mother had been recommended for the Supreme Court in 1986 before the collegium system and she was approved by six chief justices and Chief Justices of India (CJIs) before her elevation to the apex court in 1998 as the fourth woman to ever do so. She also wrote that her Justice Misra had fought “personal battles” caring for her ill husband, who passed away shortly after her retirement.
In 2013, Justice Misra had hit back at a Times of India column arguing that judges were “ultimately human beings” and not “robots”, and that judges “cannot be expected to give an account of every single minute or else face derogatory publicity”.
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Ms Gyan Sudha Misra should have written herself to the AG or the CJI like Judge Karnan of the Chennai High Court did, instead of her daughter doing this.
Also see timesofindia.indiatimes.com/india/Govt-set-to-turn-down-CJIs-latecomer-pick-for-tribunal/articleshow/47670415.cms
"Chief Justice of India HL Dattu has recommended to the Centre to appoint Justice Gyan Sudha Misra as head of the appellate tribunal dealing with cases under the Smuggling Activities and Foreign Exchange Manipulators Act (Safema), but the Modi government is all set to return the recommendation and seek a fresh name.
The Centre has no option but to disagree with the CJI's recommendation as it has gone public with its view that Justice Misra's elevation as a judge of the Supreme Court by the collegium headed by the CJI was an example of bad appointment since she as a high court judge was in the habit of coming late to court."
There are factual inaccuracies in this article. Gyan Sudha Misra was appointed to the SCI on 30 April 2010 and demited her post on 27 April 2014 (WIKIPEDIA). So the statement "that her mother had been recommended for the Supreme Court in 1986 before the collegium system..." is inaccurate. She was first appointed as a Judge on 16 March 1994; and took office as the Chief Justice of the Jharkhand High Court on 13 July 2008.
The statement "and she was approved by six chief justices and Chief Justices of India (CJIs) before her elevation to the apex court in 1998 as the fourth woman to ever do so" is also inaccurate. She was not elevated to the apex Court in 1998. I cannot validate nor invalidate the other parts of the statement.
The second point is how can the CJI recommend Justice Gyan Sudha Misra as head of the appellate tribunal dealing with cases under the Smuggling Activities and Foreign Exchange Manipulators Act (Safema) despite all the allegations of tardiness against her? If it is true that she was recommended how can we the people have confidence in his other appointments to the SCI?
If Ms Gyan Sudha Misra wanted to respond, she should have written to the CJI etc under her own name. Or moved an intervention application in the NJAC matter.
In fact, since Mukul Rohatgi made his comments about Ms Gyan Sudha Misra in a pending matter and was invited to do so by the Bench on unsuitable judge appointments, one could conceivably also argue that Ms Unnati Misra's letter could amount to contempt of court by attempting to interfere with the administration of justice in a pending legal proceeding. Just saying...
Criminal Contempt is defined as
“criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
These definitions an anachronism and can be used as a shield to preclude robust discussion of the judiciary.
The second point; if the daughter writes to the CJI so be it. The best approach should have been for Justice Misra to ask to be made a party to the proceedings.
The more important point is how Judges are to be appointed. I believe that the Second Judges Transfer Case was an error. It breached the separation of powers principle as the Judiciary took upon itself (I want to use the word usurped) the appointments power. Consultation can never mean consent. In this sense the basic structure doctrine was also breached.
The by product of the Case was the Collegium. It has failed. I do not know how the NJAC will work.
Appointments is a vexing question and, perhaps, there may be no "first best" solution. Perhaps Parliamentary consent to the appointments may be a solution. It does work in the Presidential System like the US, but will it work in a Parliamentary system of government?
Concerned Lawyer
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