Justice Arun Mishra retires from the Supreme Court of India on 2 September as the second senior-most judge after Justice NV Ramana, the next in line to be the Chief Justice of India.
His tenure, after elevation to the apex court in July 2014, has been eventful and he leaves the court as one of the most controversial judges in its history. Even his final days in office proved headline-worthy, from the Prashant Bhushan contempt case to the Adjusted Gross Revenue (AGR) row, which have sparked debate across the country.
In his six-year stint under seven different Chief Justices of India, he was involved in a number of high-profile, politically sensitive cases, even when he was considered a more ‘junior’ judge.
This led to serious criticism of not just Justice Mishra but the CJIs who kept assigning cases to him – the high watermark of which was no doubt the unprecedented press conference by four senior judges of the apex court in January 2018.
While the four judges’ letter setting out their concerns about the assignment of politically sensitive cases to ‘preferred benches’ did not take any names, they held the press conference on a day when Justice Mishra was supposed to be heading a bench hearing the Judge Loya case. When asked if the bench in that case was an example of the problems highlighted by them, Justice Ranjan Gogoi (as he then was) told the press: “Yes.”
Although Justice Mishra had himself removed from that case following the press conference, he continued to be assigned some of the most sensitive cases, even by Justice Gogoi when he became CJI, including investigation into the conspiracy that CJI Gogoi insisted was behind the sexual harassment allegations against him.
Here is a look at some of the most controversial cases and judgments that Justice Mishra was involved in, which will go on to define his legacy at the apex court.
Sahara-Birla Diaries
In 2017, Justice Mishra had his first brush with controversy when a two-judge bench headed by him dismissed a petition seeking an investigation into the ‘Sahara-Birla’ diaries.
Documents recovered from the offices of the Aditya Birla Group during a raid in 2013 by the officers of Income Tax department and Central Bureau of Investigation (CBI) showed payments in crores appeared to have been made to different politicians. One of the entries in the documents allegedly showed a payment of Rs 25 crore to the then Gujarat Chief Minister and present Prime Minister Narendra Modi.
In 2015, the NGO Common Cause, filed an application in the Supreme Court seeking a probe into the Sahara-Birla documents as the Income Tax department had not handed over these documents to the CBI, which was also looking into these companies, for further investigation.
What was the Controversy?
In its January 2017 judgment, the bench of Justices Arun Mishra and Amitava Roy dismissed the application moved by Common Cause. The bench had held that the persons holding high constitutional positions cannot be subjected to investigation based on ‘loose papers.’
KV Chowdary was leading the investigation by the Income Tax department into the Sahara-Birla documents. He was appointed as the Chief Vigilance Commissioner in June 2015. Common Cause had challenged his appointment as CVC due to several allegations of corruption against him. In July 2018, Justice Arun Mishra’s bench dismissed this petition filed by Common Cause.
The perceived proximity of Justice Mishra towards the ruling dispensation of the day was alleged by some sections of lawyers and activists to be behind the dismissal of the demand for a probe into the Sahara-Birla diaries.
The Land Acquisition Row
The land acquisition case, from its origins to its final resolution, is one that may come to be seen as emblematic of Justice Mishra’s time at the court, involving questions of propriety, benefits to large corporations, and contentious legal reasoning.
On 23 October 2019, Justice Arun Mishra refused to recuse himself from a five-judge Constitution Bench that was set up to decide which of the two earlier judgments relating to the Land Acquisition Act of 2013 was correct.
This Constitution Bench would go on, in March 2020, to uphold a 2018 verdict on the issue – which just happened to have been written by Justice Mishra himself.
The case dealt with the different interpretations of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013.
Section 24(2) of the 2013 Act elaborates that the land acquisition proceedings initiated under the old Land Acquisition Act 1894 will lapse, if ‘compensation has not been paid’ to the landowners within five years.
In January 2014, the then CJI Lodha in the Pune Municipality Corporation Case held that the deposit of compensation in government treasury cannot be regarded as the payment made to the land owners.
In February 2018, however, in the Indore Development Authority case, a three-judge bench headed by Justice Mishra overruled the 2014 judgment and held that paying money into the government treasury will suffice for the land acquisition process even if the payment had not been made to the farmer.
What was the Controversy?
The February 2018 judgment by Justice Mishra’s bench created a lot of confusion as a huge number of petitions under the 2013 Act were pending in the Supreme Court and various high courts. Moreover, by a 2:1 majority the bench held that the 2014 judgment was ‘per incuriam’ – ie it had been decided incorrectly by ignoring points of law that should have been considered.
Conventionally in the Supreme Court the judgment of a bench is binding on all the subsequent benches of same or lesser number.
The ‘per incuriam’ reference in Justice Mishra’s February 2018 judgment was therefore widely considered inappropriate and legally dubious, as only a larger bench should have been able to make a finding of per incuriam – especially when one of the judges was dissenting.
In this context, the presence of Justice Mishra on the Constitution Bench became extremely contentious, as the Constitution Bench had to decide if Justice Mishra’s decision in 2018, with the additional baggage of the per incuriam finding, was correct or not.
The All India Farmer Association wrote a letter in October 2019 to the then Chief Justice of India Ranjan Gogoi requesting Justice Mishra not to hear the matter “as he had already expressed his views about the issue in the 2018 decision.”
When the hearings began, a request was made for Justice Mishra to recuse himself, which he rejected in a judgment that also attracted serious criticism.
The Haren Pandya Murder Mystery
A bench headed by Justice Arun Mishra convicted 12 persons on 5 July 2019 in the murder case of former Gujarat Home Minister Haren Pandya. To do so, the Supreme Court bench overruled the acquittal of these accused by the Gujarat High Court while allowing the appeals of the Central Bureau of Investigation (CBI) and the Gujarat government.
Former Gujarat Home Minister Haren Pandya was shot dead on 26 March 2003 in Ahmedabad. The CBI investigation had concluded that Pandya was killed to avenge the 2002 post-Godhra riots.
In August 2011, the Gujarat High Court had acquitted the 12 accused of the murder charges, overruling the 2007 conviction by the trial court after it found gaping flaws in the investigation. The trial court had awarded sentences from five years to life imprisonment to the convicts.
What was the Controversy?
The CBI and the Gujarat government appealed against the Gujarat High Court’s verdict in the Supreme Court immediately after the August 2011 judgment. In October 2018, the appeal was allotted to a two-judge bench headed by Justice Arun Mishra.
The July 2019 verdict overruling the Gujarat HC order in this politically sensitive case involving the murder of the former Gujarat home minister came a few weeks after the results of the 2019 Lok Sabha elections in which the Narendra Modi-led Bharatiya Janata Party swept to power. An early verdict in the case could have created a political impact during the Lok Sabha elections.
The Gujarat High Court in its 2011 verdict had held that the CBI investigation was ‘botched up’ and ‘misdirected.’ But the Supreme Court admitted that the CBI had investigated the case “thoroughly and minutely.”
The bench headed by Justice Mishra also dismissed a PIL filed by NGO Centre for Public Interest Litigation (CPIL) seeking a court-monitored fresh probe in the Pandya murder case in the light of the new facts which were not taken into consideration by the investigating agency. The bench imposed a fine of Rs 50,000 on CPIL.
Prashant Bhushan, appearing for CPIL, had asked for a Supreme Court-monitored reinvestigation into the Pandya murder case as new facts had emerged about the encounter killings in Gujarat since 2003. The Gujarat High Court while acquitting the convicts from murder charges had also pointed to involvement of others.
The bench, however, also raised objection on advocate Prashant Bhushan representing the CPIL as the Rules of Conduct framed by the Bar Council of India forbids an advocate from representing an organisation of which he is a member of the governing body.
This was another addition to the tetchy relations between Bhushan and Justice Mishra, beginning with the Sahara-Birla diaries case and ending with Justice Mishra convicting Bhushan for criminal contempt of court.
Coming to the Rescue of Two CJIs
Justice Arun Mishra was part of the benches that played a key role in the protecting the dignity and reputation of not one, but two former CJIs.
On 14 November 2017, a three-judge bench that included Justice Arun Mishra dismissed senior advocate Kamini Jaiswal’s petition seeking a court-monitored Special Investigation Team probe into medical bribery. The CBI was investigating a case against a medical college which was trying to secure favourable judgment by bribing the sitting high court and Supreme Court judges.
Senior advocates Prashant Bhushan, Kamini Jaiswal and Dushyant Dave had raised concerns about the involvement of the CJI, since he was linked to the allegations - though he had not been expressly named in the FIR by the CBI.
On 1 December 2017, another PIL filed by the Campaign for Judicial Accountability and Reforms (CJAR) on the same matter was also dismissed by the same three-judge bench of Justices RK Agrawal, AM Khanwilkar, and Arun Mishra. A fine of Rs 25 lakh was imposed on CJAR.
Justice Arun Mishra was also a part of the special bench set up in light of the sexual harassment allegations against CJI Ranjan Gogoi on 20 April 2019. CJI Gogoi, in breach of all rules of propriety, headed the special bench set up on the day, with his involvement later erased from the record.
Justice Mishra then took over the three-judge bench, which was to consider if there was a larger conspiracy to blackmail the CJI. This bench issued a notice to advocate Utsav Bains, who had claimed that the sexual harassment allegations against the CJI were part of a larger plot to destabilise the judiciary.
Retired Justice AK Patnaik was assigned to submit a detailed report after investigating the matter.
What was the Controversy?
These two cases were the rare occasions where the former CJIs were the part of the benches hearing the matter in their own cause.
The medical college bribery case pertained to allegations against the then CJI Dipak Misra, who held that he had a right to decide which judges would hear the case. The dismissal of the petitions demanding the probe into the case drew sharp controversy as the matter involved the CJI himself and as the master of roster, the CJI only enjoys the authority to set up benches and allocate cases.
In the sexual harassment case against CJI Gogoi, retired Justice AK Patnaik submitted his report at the end of September 2019 in a sealed cover to the Supreme Court. But there has been no hearing on the report till now, and indeed no hearing by that special bench headed by Justice Arun Mishra since April 2019.
The Supreme Court employee who had brought the sexual harassment allegations was reinstated in January 2020, and the criminal cases initiated against her dropped. In March 2020, CJI Gogoi was nominated to the Rajya Sabha.
The 100% Tribal Reservations Judgment
On 22 April this year, a five-judge Constitution Bench led by Justice Arun Mishra struck down a government order issued by the Andhra Pradesh government in 2000 providing 100 percent reservation for scheduled tribe candidates for the post of schoolteachers in the scheduled areas. This order was still being followed in both AP and Telangana.
The Constitution Bench held that the government order was arbitrary and not permissible under the Constitution. The bench, referring to the 1992 Indira Sawhney judgment, reiterated its existing position on reservations that 50 percent quota shall be applicable.
This judgment drew sharp criticism from within the tribal community and the tribal rights activists
What was the Controversy?
The judgment led to statewide protests in Andhra Pradesh and Telangana by various tribal groups.
According to the tribal groups, the people staying in scheduled areas had different needs from the people residing in other parts of the country. They also argued that the order contravened the spirit of Schedule V of the Constitution of India which protects the rights of the tribals.
There is also an administrative problem for the state government to provide quality education in the scheduled tribe areas, which was one of the practical reasons behind the order. The absenteeism of non-tribal teachers in the schools in tribal areas is high and poses a constant challenge for the state government, and so reversing the quota is unlikely to lead to better learning outcomes for children there.
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