Justice Arun Mishra: An assessment

Throughout their tenure, judges deliver judgments. On one occasion, they are at the receiving end. That is when they lay down office, and it is then that they must await the judgment of the Bar and legal commentators on their performance.

Such judgment must meet the standards of judgments in law – it must be fair and unbiased, accurate and perceptive, and be rendered without fear or favour. And it must be respectfully received. It is in the interests of proper administration of justice that such report cards are marked; they are a reminder of standards kept, improved upon and failed, and act as cautions and rewards. For, as we have been reminded recently by the senior lawyer Dushyant Dave, judges come and go but the Bar always continues; and as strongly put by a senior Supreme Court judge Justice Arun Mishra, the Bar is the mother of the judiciary.

The latter, who demitted office on September 2, 2020, is without doubt one of India’s most controversial judges. Recent articles by Justice AP Shah in the Hindu, Justice Rekha Sharma in the Indian Express, V Venkatesan in the Wire, Anup Surendranath, Aparna Chandra and Suchindran Bhaskaran in the website Article 14 have passed such judgment, and they have not been kind.

Justice Mishra came sharply into the limelight when the four senior most judges of the Supreme Court in a memorable press conference in 2018 protested against sensitive matters being posted by the Chief Justice before one particular junior judge. It appeared that the case of the death of Judge Loya had been sent to Justice Mishra, which was the immediate trigger for the alarm raised. This coupled with other matters gave rise to the view that he was the judge of choice of Chief Justices when uncomfortable matters had to be disposed of in summary fashion. As he rose in seniority and entered the Collegium of the Supreme Court, the controversies increased.

Haren Pandya was the Gujarat Home Minister shot and killed in broad daylight; an investigation quickly fastened suspicion on a Muslim group and conviction by Sessions Court duly followed. The High Court threw it out citing hopeless evidence, which was not to the liking of the powers that are in Gujarat. Justice Mishra restored the conviction, but in doing so, seems not to have gone by the principles laid down by the Supreme Court when it comes to reversing an acquittal by the High Court; worse, his reasoning has elemental flaws.

He drew the spotlight on himself on another occasion when sitting as a vacation judge he posted a tax matter for final orders, most unusual since vacation courts are only for urgent reliefs and not final disposals. In this and another tax matter he heard finally during the vacation, Justice Mishra passed orders benefiting a business house named Adani. Other Adani matters came up before him contrary to the norms for posting before benches of the Supreme Court. Reliefs given to the Adani group in these and other matters by the judgments of Justice Mishra come to thousands of crores of rupees; indeed the Adani group seems to have had a dream run in the Mishra Court.

He raised eyebrows when he pursued doggedly the demolition of the 343 apartments in the four tall-storeyed residential buildings in Maradu, Cochin on grounds of construction without environmental approval. It wasn’t an open and shut case since over time, the area had become classified as one where such buildings were permissible, and the High Court had held in favour of the owners. Not all the owners were heard by the Supreme Court technical committee before determining the applicability of the CRZ Notification. In fact, another Bench of the Court during vacation had seen enough merit to order a limited stay. But none of this mattered to Justice Mishra and the buildings had to be reduced to rubble.

The poor too felt the brunt; one of his last judgments ordered the summary eviction of 48,000 hutments near railway tracks – no notice, no hearing, no hope for alternative housing or judicial ameliorative remedy.

In the matter of the AGR (Adjusted Gross Revenue), Justice Mishra held that the telecom companies’ income from other sources should be included for the purpose of calculating the licence fee. Now this was deeply problematic for the industry for two reasons – the amount involved from two of the main players was staggering. Rs 58,000 crores from Vodafone and Rs 43,000 crores from Airtel, (the third Reliance Jio was not involved in the case).

Leave alone the merits of the reasoning in the judgment, which is debatable to say the least, Justice Mishra, unbelievingly, gave these two companies just three months time to pay up the entire dues, else face closure. He, and everyone else with the faintest knowledge of numbers in the industry, would have known that there was no way that these numbers could be forked up, and closure of these two would lead to the virtual monopoly of Reliance Jio. And yet, this senior judge of the Supreme Court insisted on this sort of timeline. Fortunately, relentless imploring by the two companies and the government has now got them more time from him.

Strangely, when the government proposed to apply the principles laid down in his judgment to the AGR of public sector undertakings, they faced his wrath and had to hastily backtrack.

In the Indore Development Authority cases, Justice Mishra sided with the government’s view that there should be limited lapsing of land acquisition cases. He went to extreme lengths to overcome a contrary view of another Bench – disagreed with it, labelled it per incuriam and finally insisted despite strenuous objection that he should preside over a 5-judge Bench to have his say and carry the day. That the private citizens litigants should have full confidence in the impartiality of the bench in a case with such high stakes for numerous people did not seem to be important.

As one explores his judgments what emerges is not so much the quality of jurisprudence on display, but rather an almost wilful disregard for proper judicial and legal practices and institutional norms, and a blind eye to the cost and and consequences of one’s actions. We grant huge power to our judges because they not only go by the dictates and boundaries of the law and precedent, but are models of restraint and sobriety and balance, and therefore can be trusted with this power.

But when that is abandoned, who can come to the rescue; to ask the question which is asked more frequently by the day – who guards the custodians? We must thank Justice Mishra for one thing, and that is to have shown us the dangers when the guards run amok.

Because he gave us an excellent insight of that when he topped this enumerated list with the contempt case of Prashant Bhushan.

In what will remain a blight on the court’s record till remedied, Bhushan was pursued by Mishra, as simple as that. The two had no shortage of spats in Court, and the former had even requested some time back that this judge should not hear his cases. This time, Mishra chose the battlefield of contempt jurisdiction, which basically meant that the lawyer had to fight with both hands tied behind his back, since the Judge is the accuser, prosecutor, witness and adjudicator.

Bhushan’s tweet on the CJI astride a motorcycle was a petulant but harmless instance of venting his ire which really did no damage to the CJI or the institution. His tweet about the judiciary and the last four CJIs having let down the country was his opinion, to which he and every man and woman is entitled, and in truth it is an opinion which is shared very substantially if not in full measure by many people including several senior former occupants of the Supreme Court.

But Mishra, true to his wont, plunged on heedless in taking this up and speeding up in one month to hand down a punishment the day before his retirement. The proceedings were summary, the lawyer with an iconic record of taking up public interest cases pleaded justification, but was given no chance to show it, and even the Attorney General was peremptorily cut short when he began to say that other eminent voices, including his own, were gravely disturbed by the image of the judiciary.

Justice Mishra swept out in grand style, dismantling several more institutions in this last masterstroke. He brought down the international image of this once proud and powerful Court, which held the high ground for judicial review and public interest litigation, to one whose shoulders were so weak that it could not bear criticism, and which did not seem to think that public opinion would stand by it, and had to therefore substitute it with self-certification of morality and virtual censorship of critics. He put under severe stress the relationship between Bar and Bench, with leading lawyers having no option but to train their guns on the Court for Mishra’s misadventures. And he dismantled the constitutional protection of freedom of speech and expression, amongst the most precious rights a people can give to themselves, virtually subjugating it to silence when it discomforts a powerful Supreme Court judge. Omniscient, omnipotent – thank Heaven, not omnipresent.

One more casualty has come to light. Under the norms prescribed by the Supreme Court, appointees to the High Courts must mandatorily be over 45 of years of age. Several times, Chief Justices of High Courts have to hold back processing exceptional candidates till they cross this age barrier. In the Judges cases of 1993 and 1998, India’s Supreme Court gave itself the power to appoint judges.

In a judgment delivered in 2015, the Court struck down the National Judicial Appointments Commission intended to replace the Collegium, and also took note of the several complaints against its functioning. That included a propensity for trading-off amongst members of the Collegium for their preferred candidates. The Court emphasised that the Collegium should behave better if it was to retain such power. Justice Mishra, true to style, has demolished this institution as well.

His younger brother, Justice Vishal Mishra, recently came up for appointment to the Madhya Pradesh High Court, aged less than 45. Application of the norms would have meant unhesitant rejection or deferment. Yet, it is taken up by the Collegium , and lo and behold, Mishra the younger is through. The senior Mishra would not have been a member of the first three judges group (CJI Gogoi, Justice Bobde and Justice Ramana) which selected his brother, but he was a member of the Collegium of the Supreme Court’s senior most five judges. If he says that no wrongdoing exists because he wasn’t on this group of three, then all one can say is that this is a defence which even a freshly minted munsiff would have no difficulty throwing out, recollecting his elementary administrative law lessons of fairness, lack of bias and nepotism, and observance of propriety.

He may have also asked which portion of the heavens would have fallen if this file was held back till senior Mishra retired?

Incidentally, Vishal Mishra was recommended by the Collegium, as a Judge of the Madhya Pradesh High Court one week before the 2019 elections results came in. So subversion of yet another institution, and years from now, fellow citizens, please ready yourselves for the ascendancy of the younger Mishra to the office of Chief Justice of India, because the alignment of age has been perfectly matched by the older sibling to ensure that Vishal Mishra has a long tenure as CJI. If this is how the Collegium continues to work, it is high time we jettisoned it and backed a better version of the NJAC.

This is a piece written with much sadness, as one sees the wreckage that this one judge has achieved, no doubt helped by some who aided and some who stayed silent. But we must now bend ourselves to the task of repair. Fortunately, egregious examples serve as wake up calls, in this case a klaxon alarm. If learning from his unhappy tenure leads to throwing out contempt for free speech, reforming the selection of judges, and a better system for assignment of cases on the roster, we may yet have occasion to thank Justice Arun Mishra.

To the various judicial excesses and shortcomings of the like set out here and in other articles, one may also take note of the manner in which he reportedly ran his Court – upbraiding, threatening, and riding roughshod over any one whom he thought stood in his way or was of a different mind. He even castigated and used unbecoming language about a sitting judge of the Kerala High Court. Justice Arun Mishra had the very opposite of the Socratic qualities of a good judge – to hear courteously, to answer wisely, to consider soberly, and to decide impartially.

So grave are the provocations given by this judge that one is tempted to revisit the cases which hold that judges of superior courts being Courts of Record cannot be held to be in contempt of their own Court for scandalous behaviour lowering the reputation of the Court, and therefore Section 16 of the Contempt of Courts Act, would not apply to them. This Section provides in no uncertain terms that a judge can be found guilty of committing contempt of his own Court. Frankly, if you make a comparative analysis of the acts of Prashant Bhushan and Justice Arun Mishra, who would you say has committed contempt of court? I rest my case.

But not before two last words - one, we must wait and watch to see the future of this judge for all seasons and all the wrong reasons (apologies to Sir Thomas More). For a little bird whispers that plum posts have to be filled up now – including Chairmanship of the National Company Law Appellate Tribunal and the Lieutenant Governorship of New Delhi. Both important institutions! And two, let us keep a thought for the long term future of this country and the welfare of our descendants, and see how the august office of the Chief Justice of India can be spared the occupancy of the current Mr Justice Vishal Mishra; a High Court judgeship acquired by such serious irregularities cannot lead to becoming the legitimate primus inter pares in the Supreme Court, the First Judge of the country.

The author is a Senior Advocate practising before the Madras High Court.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.