The motto of the Supreme Court reads ‘Yato Dharma Tato Jaya’, a verse from the Bhagavad Gita which in judicial practice means ‘victory is that of righteousness’.
This is a motto that has often been invoked for himself and the court as a whole by Justice Arun Mishra, who retires on Wednesday, 2 September, bringing his controversial tenure at the apex court to an end.
During the arguments on the quantum of punishment against Prashant Bhushan in the contempt case case against him, Justice Mishra cited the idea of a ‘Laxman Rekha’ that cannot be crossed even with freedom of speech, while reiterating that in his 21 year-career, he had not ‘punished anyone for contempt’.
Justice Arun Mishra offered Prashant Bhushan a chance to reconsider his decision and not to apply his ‘only legal brain’ – and the lawyer’s refusal to apologise and express regret was a key factor in the judge’s decision to not accept Attorney General KK Venugopal’s advice and not punish him.
What ‘Reputation’ & ‘Image’ Mean To Justice Mishra
Though the contempt case against Prashant Bhushan has drawn sharp criticism from the legal fraternity, a key consideration behind the case and the conduct of the Bench headed by Justice Mishra was the image of the court, and public confidence in the judiciary as an institution.
This is not, of course, the first time that Justice Mishra has been conscious about his image and reputation while hearing an important case.
In January 2018, after the unprecedented press conference by the four senior-most judges of the Supreme Court against then Chief Justice of India, Justice Mishra reacted to being ‘unfairly targeted by his fellow judges’. According to media reports at the time, Justice Mishra had said “the only thing I have earned in my life is reputation and you have tried to attack it.” His emotional outburst came out at the daily customary morning meeting in the presence of the then CJI Dipak Misra, who later pacified him.
When rejecting a request to recuse himself form a major land acquisition case, Justice Mishra once again cited his own conscience and sense of right and wrong, and argued that if he had even the slightest worry that he would not fairly deal with the case, he would have walked away himself.
On 3 December 2019, Justice Mishra, while hearing the land acquisition case, had warned senior lawyer Gopal Sankarnarayanan of contempt and conviction if he did not stop repeating arguments. Sankarnarayanan walked out of the courtroom after the warning. This drew sharp a reaction from the Bar. Following this, Justice Mishra had said to a group of senior lawyers that he would ‘apologise a 100 times with folded hands’.
Justice Mishra’s ‘Courtship With Controversy’
Justice Mishra, who joined the higher judiciary after spending almost 20 years as a lawyer, maintains a good relationship with the Bar, but has nevertheless faced sharp criticism from many sections of the legal fraternity for many controversial cases he has heard in recent years since his elevation to the Supreme Court in July 2014.
Here are a few of the more recent instances which have seen negative reactions.
Justice Mishra was a part of the special bench which heard the sexual harassment case against CJI Gogoi on 20 April 2019, with the CJI’s involvement on the day a matter of great controversy.
Justice Mishra was the second senior-most judge on a three-judge bench headed by CJI Gogoi and Justice Deepak Gupta. He subsequently headed the new bench set up by CJI Gogoi to look into the claim that the sexual harassment allegations were part of a ‘plot’ to threaten the judiciary – which has not been heard for over a year now, even though Justice (retd) AK Patnaik submitted his inquiry to the judges in September 2019.
In February 2019 a three-judge Bench headed by Justice Mishra ordered the eviction of adivasis and forest dwellers whose claims over land were rejected under the the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights Act), 2006. This order drew sharp criticism from lawyers and rights activists across the country as close to one million tribals were likely to be evicted from their lands. The SC later stayed the order after widespread panic and strong reactions.
In October 2019, Justice Arun Mishra refusal to recuse himself from a five-judge bench – which was to examine whether his own past judgment (changing the interpretation of key provisions of the new Land Acquisition Act) – drew criticism from all quarters including the farmer organisations.
In August 2019, senior advocate Dushyant Dave wrote to the then Chief Justice of India, Ranjan Gogoi, raising concerns about cases involving a particular corporate group being assigned to benches headed by Justice Mishra, in violation of the court’s own rules. In his letter, Dave had drawn attention to two cases, which were allegedly listed by the registry during the summer vacation that year, flouting the procedure.
Apart from the criticism from the legal fraternity for his handling of many high-profile cases, Justice Mishra has been drawing criticism from within the fraternity and outsiders for his alleged proximity to the BJP.
In 2017, Justice Mishra headed a two-member bench that dismissed a petition seeking an investigation into the ‘Sahara-Birla’ diaries.
Documents recovered from the offices of the Aditya Birla Group during a raid by the Central Bureau of Investigation (CBI) officers showed payments in crores made to different politicians.
In January 2018, two petitions seeking a probe into the death of Judge BH Loya came up before the two-judge bench of Justice Arun Mishra and Justice Mohan Shantanagoudar. Two petitions were filed calling for a court-monitored probe into the mysterious death of Judge Loya. His death was reported following a heart attack at a hotel in Nagpur a few days after he issued a summon against present Union Home Minister Amit Shah – he had been hearing the Sohrabuddin Sheikh fake encounter case at the time.
When the four senior judges conducted their historic January 2018 press conference and raised concerns against the allocation of politically sensitive cases to ‘preferred benches’, Justice Gogoi confirmed to reporters that one of the cases which they were talking about there was the Judge Loya case, which had been scheduled to be heard that day by Justice Mishra’s bench.
In February 2020, Justice Mishra’s open praise for PM Modi at a judicial conference drew flak from the legal fraternity and legal commentators.
Retired judges termed his comments ‘most inappropriate’, ‘unbecoming of a sitting judge’, and warned that they gave a bad impression about the independence of the judiciary. The Bar Association of India went so far as asking him to recuse himself from all cases against the government.
Justice Arun Mishra’s Career Before Elevation to the SC
Born on 3 September 1955, Justice Arun Mishra is a second-generation lawyer who started his career in Gwalior. His father, late Hargovind Mishra, was a judge of the Madhya Pradesh High Court. Justice Mishra practised from 1978 to October 1999 in constitutional, civil, industrial, criminal and service matters in the Gwalior Bench of Madhya Pradesh HC.
He was appointed as Additional Judge of the High Court of Madhya Pradesh on 25 October 1999, and Permanent Judge on 24 October 2001. He was transferred to Rajasthan High Court in September 2010, and became the Chief Justice of Rajasthan in November 2010. In December 2012, he was transferred to the Calcutta High Court as the Chief Justice.
Justice Mishra continued his engagement with academic despite being a full-time lawyer.
He was a part-time lecturer in law during 1986 to 1993, and was a member of faculty of Law at Jiwaji University, Gwalior, from 1991 to 1996. He was elected as the youngest Chairman of the Bar Council of India (BCI) in 1998.
During this tenure at BCI, he was the Chairman of the General Council of National Law School of India University at Bangalore. He is credited with introducing the 5-year undergraduate law course.
He also drafted and implemented the Foreign Law Degree Recognition Rules 1997 under the Advocates Act of 1961.
(Sahasranshu Mahapatra is a Delhi-based journalist and an alumnus of the CLC, DU who writes on legal and political issue. He tweets @sahas. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)