A Sui Generis Style: Justice Arun Mishra On The Supreme Court

In many ways, the Bhushan ruling serves as an archetype of Justice Mishra’s career, write Suhrith Parthasarathy and Gulnar Mistry.
A Sui Generis Style: Justice Arun Mishra On The Supreme Court

“An institution,” said Ralph Waldo Emerson, “is the lengthened shadow of one man”.

In the case of the Supreme Court of India, that person has usually been the Chief Justice of India. But Justice Arun Mishra, whose tenure ends today, has been an exception. No doubt, during Mishra’s time on the bench, successive Chief Justices have each shaped the Court’s performance. But his presence has invariably been felt. He has been tasked with presiding over benches that have heard some of the most politically and commercially significant disputes to have reached the Court, sometimes to the exclusion of more senior judges.

And his judgments and interventions in those cases have altered, often in undesirable ways, the Court’s status as an independent and final arbiter of disputes.

Mishra Asks, Mishra Answers, Mishra Reviews

The legacy that Mishra leaves behind is perhaps best exemplified by his judgment for a Constitution Bench in Indore Development Authority v. Manohar Lal.

In rejecting requests seeking Mishra’s recusal, the bench plunged a dagger into Lord Hewart’s axiom that justice should not only be done, but must be seen to be done.

The issues in the case arose out of an interpretation of section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. This provision stipulated a set of conditions under which acquisitions made through the erstwhile land acquisition law of 1894 would stand mechanically annulled. Months after the 2013 law came into force, in Pune Municipal Corporation v. Harakchand Misirimal Solanki, a three-judge bench of the Supreme Court construed this clause to the benefit of landowners.

This decision came to be regarded as the established law of the land. It was followed by benches of the Supreme Court and of High Courts across the country in a multitude of disputes. In December 2017, however, a two-judge bench comprising Justices Mishra and Amitava Roy questioned the verdict’s correctness and invited a reference to a larger bench. Soon thereafter, a three-judge bench was constituted. Once again, though, it had Mishra presiding over it. Any reticence that he may have exhibited earlier was now firmly set aside, as the bench—with Justice Shantanagoudar dissenting in part—declared that the verdict in Pune Municipal was not good law. This judgment, in Indore Development Authority v. Shailendra, was concerning not only because the new interpretation was inimical to the interests of landowners but also because it had been Mishra, after all, who had sought the reference in the first place.

Later, another three-judge bench decreed that all cases concerning Section 24(2) of the LARR should be kept in abeyance until the muddle was resolved. Even as matters were pending before that bench, the Chief Justice constituted a five-judge panel.

In a Court with more than 30 judges, it came as some surprise when Mishra was asked to preside over the five-judge bench as well.

Requests made seeking his recusal were rejected, and the verdict in Pune Municipal was, this time, conclusively overruled. In doing so, the Court erred in its reading of the statute. But what has proved even more damaging to the rule of law is the disregard shown for principles that are integral to natural justice because, as Stephen Sedley put it, “whatever the reality, appearances matter, and nowhere more so than in the administration of justice.”

‘Posterity Will Not Forgive Me If I Recuse,’ Justice Arun Mishra Says

In Re Master Of The Roster
Mishra’s time on the bench has been somewhat irresolute—the fidelity to past precedent that was jettisoned in Indore Development Authority was invoked only months earlier by a Constitution Bench that he was on.

In Campaign for Judicial Reforms v. Union of India (2017), the Supreme Court followed its 1997 decision in Prakash Chand, and held that, as in the case of the High Courts, administrative control of the Supreme Court vested solely in the office of the Chief Justice of India. The original reference to a Constitution Bench had its genesis in a controversy surrounding the then-Chief Justice Dipak Misra.

The question before the Court was whether the Chief Justice could constitute a bench to hear a matter that had a direct bearing on the investigation of a First Information Report that implicated the Chief Justice himself.

The Constitution Bench declared that the Chief Justice of India was “the master of the roster”, that his office enjoyed complete autonomy over the Court’s administrative affairs—“an institution”, the judgment recorded, “has to function within certain parameters and that is why there are precedents, rules and conventions.”

The Chief Justice’s position as the master of the roster, which Campaign for Judicial Reforms affirmed, has routinely proven controversial. Perhaps never more so than in In Re Matter of Great Public Importance Touching the Independence of the Judiciary, where Mishra was a junior judge on a bench presided over by then-Chief Justice Ranjan Gogoi. Seeing as the bench was constituted to launch an inquiry into whether or not allegations of sexual harassment against Gogoi were a conspiracy against the Court, Gogoi ought not to have been on the bench at all and yet he was. Things became curiouser still when the short order issued by this bench of three left out Gogoi’s signature, an act that one can only presume had the silent acquiescence of his colleagues. Thereafter a new bench constituted by Gogoi, with Mishra presiding, appointed retired Justice Patnaik to inquire into the alleged conspiracy. Although a report was submitted in October 2019, the matter hasn’t been listed since.

Justice Patnaik Completes Probe Into ‘Larger Conspiracy’ Against Chief Justice Gogoi

Perception And Process

Mishra himself has been in the eye of the storm on other occasions. For instance, only days before the 2017 decision in Common Cause v. Union of India (regarding the Sahara-Birla papers), he was photographed at a wedding with Shivraj Singh Chouhan, alleged to be one of the recipients of a pay-off. The lawyer for the petitioner, Prashant Bhushan (yes, him again) tweeted (yes, that again) the photograph, prompting a debate on whether Mishra ought to have recused himself and (given that he had not) whether the judgment ought to be recalled.

Similarly, in August 2019, noted lawyer Dushyant Dave addressed an open letter to the judges of the Supreme Court bemoaning the manner in which cases were assigned to certain benches.

He pointed out that while this very issue was the subject matter of the famous judges’ Press Conference of January 2018, things had scarcely improved since. “It is not necessary to illustrate the list of such cases,” wrote Dave, “except to say that there are far too many.” In particular, Dave questioned the “improper” manner in which two appeals by Adani Group companies (Parsa Kenta Collieries and Adani Power (Mundra) Ltd.) were heard during the preceding summer vacation. He pointed out that these cases had been listed without an order by the regular bench requiring them to be heard during the court holidays, without any evident urgency in the matter, and in apparent derogation of guidelines and norms approved by the Chief Justice.

Mishra was on that summer bench and decided the cases, both to the benefit of Adani Group.

Concerns over perception were brought to the forefront when, speaking at the inaugural event of the International Judicial Conference 2020, Mishra eulogised the Prime Minister, whom he described as a “versatile genius”. What is more, India, he said, had become “a responsible and most friendly member of the international community” under the stewardship of the “internationally acclaimed, visionary Prime Minister.”

The Union of India is the biggest litigant in the country, both in terms of volume and stature—when a judge expresses, in such effusive terms, his regard for the head of the Union Cabinet, he undermines his own impartiality.

Landmark Judgments

As a judge of the Supreme Court, Mishra’s career is also notable for judgments that have settled the law of the land, in areas ranging from affirmative action policies to statutes governing property and civil law.

At least six of these rulings merit attention.

Daughters Vs Women
Most recently, Justice Mishra held, in Vineeta Sharma v. Rakesh Sharma, that section 6 of the amended Hindu Succession Act, 1956 applies retroactively, to give daughters born in Hindu undivided families the same rights as sons, even where a father had died before the amendment had taken effect in 2005.

The judgment has been widely hailed. Indeed, in holding that daughters have equal rights as sons and that a woman’s right to share in a coparcenary emerges from her birth, the court interpreted the law progressively.

However, it overlooked a number of interpretive quandaries.

For instance, it discounted the rights of other women—the mother and wife of a Hindu man, for example—to seek a share on the death of a male coparcener, which were protected under the law as it stood before the amendment. If one is to apply the amended statute as interpreted by the Supreme Court, the rights of some of the women that had been expressly protected by the erstwhile legislation will stand nullified. Mishra’s judgment does not so much as reference this conundrum.

Reservations, Reservations
While some might well see the Court’s judgment in Vineeta Sharma as vital to redressing a historical inequality, the judgment of a Constitution Bench headed by Mishra in Chebrolu Leela Prasad’s case, decided in April this year, achieved the converse.

In striking down reservations made for Scheduled Tribes for appointments to educational posts in Scheduled Areas in Andhra Pradesh and Telangana it paid no heed to basic principles of equal treatment. The judgment is grounded in, amongst other things, a belief that 100% reservation would sacrifice merit at the altar of reservations—a thesis that betrays a regrettable lack of understanding of how affirmative action works, or ought to.

The Math Behind Reservation in Government Jobs

Even worse, however, is how the court dealt with the appointments made in pursuance of the Government Memorandum. The Court saved these appointments, but only conditionally. It held that if the states of Andhra Pradesh and Telangana attempted a similar exercise at any time in the future and exceeded the 50% limit of reservation, appointments made with effect from 1986 “till date” would stand nullified. In finding thus, the Court not only ruled on any prospective reservation beyond 50% without regard to the fact that such a policy may be necessitated by different considerations, it also transgressed its jurisdiction and arrogated to its present self the power to rule on decisions that could only be made in the future.

In the week leading up to his retirement, Mishra exhibited a keener understanding of the complexity of reservations. In State of Punjab v. Davinder Singh, authoring a judgment for a Constitution Bench, Mishra concluded that the 2004 judgment in E.V. Chinnaiah v. State of AP ought to be referred to a larger bench. Through a careful and comprehensive review of past precedent, he held that State Governments must be allowed to sub-classify Scheduled Castes and Scheduled Tribes where necessary. This is because, as the Court said, “the constitutional goal of social transformation cannot be achieved without taking into account changing social realities.”

How the larger bench decides will have deep ramifications for affirmative action programmes in India.
Is There A Fundamental Right To Reservations?

Adverse Possession Set Right
In Ravinder Kaur Grewal v. Manjit Kaur (2019), Mishra, writing for the Court, re-established the proprietorial right of adverse possession under Indian law. The bench overruled an earlier verdict—and this time it was within its powers to do so, given that the ruling had been rendered by a smaller panel—to hold that a plea of adverse possession was just as open for a plaintiff in a civil suit to take as it was for a defendant.

Adverse possession, or a squatter’s right, refers to a person acquiring legal ownership based on continuous possession of land over which she doesn’t otherwise have legal title. It is a concept entrenched in the common law. But in 2013, in a judgment that departed from convention, the Court ruled that a plea of adverse possession could only be used as a defence. Mishra’s judgment sets this position right. It recognises, correctly, that a plaintiff has a right to seek a declaration of ownership of property emanating out of adverse possession; that the plea can be invoked not only as a shield but also as a sword.

AGR Adjusted
Soon thereafter, in Union of India v. Association of Unified Telecom Service Providers of India & Ors. (the AGR dues case) a bench headed by Mishra was tasked with interpreting the definition of “adjusted gross revenue” used in license agreements between telecom service providers and the Department of Telecommunications (DoT).

The judgment’s consequences for the telecom industry were always likely to be huge. In a verdict delivered in October 2019, the Court held in favour of the DoT’s reading of the definition. According to it, telecom companies had attempted to rewrite contractual terms and “wriggle out of the rigour of the definition”, which took within its ambit the phrase “any other miscellaneous revenue.” The upshot was that license fees were now payable even on income that was not attributable to activities under the license.

A central issue in the dispute was this: why should the phrase “any other miscellaneous revenue” include income from sources extraneous to the license arrangement? But the Court didn’t so much as frame this as a question. It instead treated the answer as obvious, without explaining why this was so. The Court also found that telecom service providers were each obligated to pay penalty, interest, and interest on penalty on the miscellaneous revenue, resulting in the licensees being liable to pay lakhs of crores—figures so significant, and potentially devastating, that even the DoT was forced to make an application requesting that the companies be allowed to make staggered payments over a period of 20 years. Since the judgment, the Court’s stand had been unrelenting, and even, on occasion, furious. Contempt notices were issued to directors of the errant companies on the one hand and to an officer of the DoT on the other.

In some ways, this foreshadowed Mishra’s enthusiasm for the law of contempt.

Eventually, the Court accepted the application for staggered payments, but rather than twenty years—which the judgment, without explanation, said was “excessive”—it directed payment within ten years.

AGR Case: Supreme Court Gives Telecom Operators 10 Years To Pay Pending Dues

On Matters Of Liberty

Mishra’s tenure is also punctuated by a contentious record on civil liberty cases.

No doubt, in Sushila Aggarwal v. State, a Constitution Bench on which he sat handed down a progressive reading of the law when it held that orders granting anticipatory bail are not meant to be limited to a fixed period and can continue till the end of a trial. But when it came to determining issues of personal liberty outside of the vacuum offered by abstract questions of law, his decisions took a turn for the conservative. At least two separate instances demonstrate this outlook.

Gautam Navlakha’s Transfer
In July this year, a bench led by Mishra set aside an effort by the Delhi High Court to inquire into the haste with which Gautam Navlakha was removed from the High Court’s jurisdiction and transferred to Mumbai. The Court was in the midst of hearing a plea made by him for bail after being charged under the Unlawful Activities Prevention Act. As the former Patna High Court judge Anjana Prakash has pointed out, the NIA’s conduct was “unseemly”, and the Delhi High Court was certainly within its powers to examine why Navlakha had been removed from its jurisdiction. The independence of the judiciary, after all, demanded nothing less. The Supreme Court not only found that the Delhi High Court had erred in intervening in the case, but it also expunged the prima facie remarks made by Justice Anup Bhambhani against the NIA.

Saifuddin Soz’s Detention
This indifference towards personal liberty was also evident in the bench’s failure to decide on the validity of the orders detaining Saifuddin Soz in Srinagar. When the case came up for hearing in July, four weeks after a petition for habeas corpus had first been moved, the government told the court that Soz was free to move around, that there had never been any order detaining his liberty. At this point, given the plea made by Soz’s counsel, the Court ought to have tested the veracity of the government’s statement. Instead, it took the State at its word, and disposed of the petition. Soz was far from free – only hours later TV channels carried footage showing Soz being physically restrained and shouting from behind the walls of his home, “The government has lied to the Supreme Court.”

If Soz’s case serves as a symbol of a Kafkaesque bureaucratic State, the judgment convicting Prashant Bhushan for contempt of court exemplifies a form of ruling by fiat.

Prashant Bhushan’s Tweets
In question here were a pair of tweets through which Bhushan offered his opinion on the Court and its recent Chief Justices. The tweets were innocuous at best and waspish at worst. But a bench headed by Mishra concluded, summarily, that he had scandalised “the entire institution of the Supreme Court.”

The 108-page long judgment, delivered just days before Mishra’s retirement, is riddled with assertions about the tweets. They are variously described as scurrilous, offensive, intimidating and malicious. Despite its length, there is, at best, only sophistic justification offered to show how the statements, in fact, constitute contempt of court.

What is more, large parts of Bhushan’s affidavit, in which he set out his defence, were overlooked.

That the contempt law was amended in 2006 to provide additional safeguards against wanton prosecution was also brushed aside. Notably, that amendment stipulates, first, that contempt arises only when the Court is satisfied that the speech in question substantially interferes, or tends to interfere, with the due course of justice, and, second, that contempt proceedings won’t lie if the statement made is true and is in public interest. The Court discarded these legislative niceties, claiming that its power to punish for contempt stemmed from Article 129 of the Constitution, which granted it illimitable authority—an authority that extended apparently to both censoring and punishing inconvenient speech.

Prashant Bhushan, The Question Of Contempt, And Motorcycle Diaries

On Aug. 31, the Court delivered a separate judgment imposing a fine of Re 1 on Bhushan. He has been directed to deposit the amount by Sept 15. Should he fail to do so, he will be imprisoned for three months and his licence to practice law will stand suspended for three years. Bhushan has already indicated that he will pay the fine, but he will be seeking a review of the conviction.

In its judgment imposing the sentence, the Court claimed it has acted with magnanimity. But the danger the verdict poses is evident. It holds, for instance, that Bhushan’s statements were neither bona fide nor made in public interest, because his affidavit in reply questions the functioning of a large number of retired and sitting judges, including former Chief Justices. According to the Court, a consideration of the veracity of his allegations would amount to an “aggravation of the contempt.” This, however, puts the cart before the horse.

On the judgment’s logic, the defence of truth would never be available to a person charged with contempt.

The message could not be clearer: any criticism of a judge, which the Court finds discomfiting, is contemptuous regardless of its truth.

In many ways, the ruling in Prashant Bhushan serves as an archetype of Mishra’s career: it displays a proclivity for embossing on the rule of law his sui generis style of justice. This outlook might well appeal to some. But it abandons the traditions of our Constitution; it treats reason with disdain; and it abjures a genuine jurisprudence built on a commitment to principles. It is this negation of constitutionalism that threatens our faith in the courts, and not, as the judgment in Prashant Bhushan held, what might be written in the press, or what a pair of tweets might say.

Suhrith Parthasarathy is an advocate practicing at the Madras High Court and Gulnar Mistry is an advocate practicing at the Bombay High Court.

The views expressed here are those of the authors and do not necessarily represent the views of BloombergQuint or its editorial team.

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