This Letter Enraged Supreme Court, Judges Talked Of "Leaving Country"
The Supreme Court asked the government to call the officer to court and questioned what action was being taken against him.
All IndiaReported by A Vaidyanathan, Edited by Deepshikha GhoshUpdated: February 14, 2020 4:49 pm IST
The Supreme Court asked government to call officer to court.
108
New Delhi: A "desk officer's" letter asking that no coercive action be taken against telecom companies for not paying dues was the trigger for the Supreme Court's tongue-lashing for the government and a notice to telecom companies for contempt. The top court summoned the officer besides telecom bosses over non-payment of dues of ₹ 92,000 crore as Adjusted Gross Revenue (AGR). The Department of Telecom, given one hour to withdraw the letter, has now done so.
"Should we wind up the Supreme Court? A desk officer considers himself judge and stays our order. Who is the desk officer? A desk officer says coercive action not to be taken until further orders. How can he stay our orders," Justice Arun Mishra had demanded of the government, represented by Solicitor General Tushar Mehta.
"Nonsense has been created. There is no law left in this country. It is better not to live in this country and rather leave the country. I am anguished. I feel I should not work in this court."
lej9vhog
The Department of Telecom was given one hour to withdraw the letter.
The letter that the court referred to, written last month, was titled: "No coercive action to be taken against telecom service providers in relation to AGR dues".
It was signed by Mandar Deshpande, Director in the Department of Telecom, who wrote: "You are directed not to take any coercive action against the licensees in case they fail to comply with the Supreme Court order, until further orders."
hi6vhcio
The judges said the letter was nothing but a devise to oblige the companies.
The Supreme Court asked the government to call the officer to court and questioned what action was being taken against him. A desk officer, the judges said, was writing a letter to the Attorney General and other constitutional authorities saying they should not insist on payment of money by telcos.
Justice Mishra said his judicial conscience was shaken. "Is there anything left in the judiciary? I am at a loss. I will not bother about myself. I will pass strictures. I am totally at loss how to work in this system and in this country," he said.
The judges said the letter was nothing but a devise to oblige the companies.
108
Comments
Questioning whether "money power" was involved in the officer's move, the court also said he was liable for contempt and could go to jail.
How Justice Arun Mishra Rose to Become the Most Influential Judge in the Supreme Court
It was to his bench that some of India's most politically sensitive cases were inevitably marked, and it was four senior judges of the Supreme Court who broke ranks to question why this was so.
How Justice Arun Mishra Rose to Become the Most Influential Judge in the Supreme Court
Justice Arun Mishra. Photo: PTI and Reuters/image: The Wire
V. Venkatesan
V. Venkatesan
LAW
01/SEP/2020
This is the first in a five-part series examining the judicial career and pronouncements of Justice Arun Mishra, the Supreme Court judge to whose docket a host of politically sensitive cases were entrusted by three successive Chief Justices of India, though not always without controversy. See also: Part 2 | Part 3 | Part 4 | Part 5
New Delhi: Justice Arun Mishra, who retires from the Supreme Court of India on September 2, is arguably the most influential puisne judge the apex court has seen in recent years.
Before we delve into the legacy of his judgments, a little bit of family background may be helpful. Son of Hargovind G. Mishra, a former judge of the Madhya Pradesh high court who served from December 1977 to July 1982, when he died in office, Justice Arun Mishra belongs to a family of lawyers.
He was recommended by the Supreme Court’s collegium for elevation to the apex court during the tenure of the then chief justice of India, R.M. Lodha, after the Narendra Modi government assumed office at the Centre in 2014. At the time, Justice Arun Mishra was chief justice of the Calcutta high court. Earlier, he had served as chief justice of the Rajasthan high court for two years, from November 2010 to December 2012. He first became a judge of the Madhya Pradesh high court on October 25, 1999 and remained there till his shift to Rajasthan in 2010. Between 1978 and 1999, he was a lawyer and his practice included constitutional, civil, industrial, service and criminal matters.
In 1998, at the age of 43, he became the youngest chairman of the Bar Council of India. In his official profile on the Supreme Court’s website, Justice Arun Mishra makes a special mention of his contribution as BCI chairman – the introduction of five-year law courses, closure of “sub-standard law colleges”, disposal of a large number of disciplinary cases, framing of rules on foreign lawyers’ conditions and practice in India, and enhancement of medical aid to lawyers.
Brother judges bring brother as judge
Last year, his younger brother, Vishal Mishra, who was an advocate in the Madhya Pradesh high court, was made a judge of the high court before he completed 45 years of age, the official minimum age for such an appointment under the draft memorandum of procedure (MOP) for judicial appointments.
The high court collegium recommended him in September 2018 and the Supreme Court collegium cleared his name on May 10, 2019 despite this apparent obstacle. The resolution adopted by the Supreme Court collegium comprising the then chief justice of India, Ranjan Gogoi, and Justices S.A. Bobde and N.V.Ramana, simply said: “As far as age factor of Vishal Mishra is concerned, the collegium is fully satisfied with the justification given by the high court collegium while recommending his name”. The resolution did not reveal what justification was given by the high court collegium.
Justice Arun Mishra was not part of the selection decision. But, as No. 4 in the Supreme Court’s hierarchy of judges at the time, he was part of the five-member collegium which recommends names for Supreme Court judges. The collegium resolution also noted, “In order to ascertain suitability of the above-named recommendees for elevation to the High Court, we have consulted our colleagues conversant with the affairs of the Madhya Pradesh High Court.” It is not clear if Justice Arun Mishra recused himself from this consultation process.
Justice Vishal Mishra’s Facebook profile, which he has not updated since 2014, makes it clear that he has definite political leanings. In one post, the Nehru-Gandhi family are presented as Muslims and this is given as the reason the “Gandhi family hates Hindus”.
Posts from Vishal Mishra’s Facebook page
Justice Vishal Mishra was born on July 17, 1974 and will retire in 2036, 16 years after his elder brother retired from the Supreme Court. If he is elevated to the Supreme Court, he will retire in 2039, at the age of 65. His young age means he is likely to not only become chief justice of India if elevated to the apex court, but will have a long tenure in that position.
The official notification for Vishal Mishra’s appointment as a judge was issued by the Union law ministry on May 22, 2019, one day before the Lok Sabha election results were declared.
Interestingly, Justice Arun Mishra too became a judge of the Madhya Pradesh high court before he completed 45 years of age, but there was no rule against it at the time.
Arun Mishra’s output as a judge
As a Supreme Court judge, Justice Arun Mishra authored 132 judgments and he was part of 540 benches which delivered judgments in the apex court since the beginning of his tenure on July 7, 2014. The year-wise break-up of his judgments is as follows:
Breakup of Justice Arun Mishra’s Judgments by Year
Infogram
Justice Arun Mishra has served under seven CJIs, of whom three were in the Supreme Court collegium which picked him for elevation from the high court in 2014. These were Justices Lodha, H.L. Dattu and T.S. Thakur. Justices B.S. Chauhan and C.K. Prasad were the other members of the collegium which recommended him for elevation to the Supreme Court. The other CJIs under whom he has served are Justices J.S. Khehar, Dipak Misra, Ranjan Gogoi and S.A. Bobde.
Although Justice Arun Mishra was elevated to the Supreme Court during the tenure of CJI Lodha, his rise as the court’s most influential judge despite being lower in seniority happened during the terms of subsequent CJIs. Right from Justice Dattu down to the present CJI, Justice S.A. Bobde, successive chiefs reposed their trust in Justice Arun Mishra not only by asking him to author judgments on their behalf, but by assigning politically sensitive cases to benches presided by him or of which he was a part.
Sanjiv Bhatt case
Though CJI Dattu headed the bench, he asked Justice Mishra to author the judgment in the highly sensitive case of Sanjiv Rajendra Bhatt v Union of India.
In this judgment, delivered on October 13, 2015, the Dattu-Mishra bench dismissed the plea by former Indian Police Service (IPS) officer Sanjiv Bhatt seeking a fair, credible and independent probe into the two first information reports (FIRs) lodged against him by the Gujarat state government. The court also rejected his plea to make Bharatiya Janata Party (BJP) president Amit Shah and several others respondents to the case.
The FIRs arose from disputed claims about Narendra Modi’s role as chief minister in the 2002 Gujarat riots. Bhatt, represented by top human rights lawyers Indira Jaising and Prashant Bhushan, told the apex court that he was present at a meeting on February 27, 2002 at Modi’s home where, he alleged, the then chief minister had given a green light for reprisal attacks on Muslims following the Godhra train fire in which 57 Hindus had died. Bhatt leaked a series of emails between Tushar Mehta, who was then additional advocate general of Gujarat, and some of the accused in the riots, alleging that Mehta shared confidential information and legal documents with the accused against whom the state was conducting cases.
In his judgment, Justice Arun Mishra held that there was no reason to constitute an SIT to investigate the FIRs filed against Bhatt. Justice Mishra also said Bhatt’s conduct was not above board and that he had not come to the court with clean hands.
Also Read: Sanjiv Bhatt Case—In 16 Years, Gujarat Saw 180 Custodial Deaths, and Zero Convictions
Bhatt’s lawyers alleged that there was a criminal nexus between Mehta and lawyers of the accused, ministers and non-state actors to undermine the administration of justice, as revealed by the leaked emails. Justice Arun Mishra held that if a law officer merely took a third party’s opinion before filing a reply in court, this would not undermine the administration of justice in any way, and is not indicative of criminal conspiracy.
What Justice Arun Mishra held in this case is relevant in the contempt of court cases against Bhushan – where he convicted the lawyer on the grounds that his tweets had brought the court into disrepute.
Justice Mishra held that Bhatt was not able to establish that Tushar Mehta’s actions interfered with or obstructed in the administration of justice in any manner. Interpreting the case law, the judge held that email exchanges between the then AAG (Tushar Mehta) and other functionaries was not tantamount to causing prejudice and did not amount to substantial interference in any other manner in due course of justice. Besides, Justice Mishra did not find Mehta’s conduct as one of scandalising the court or in any manner affecting the fair decision of the court or undermining its majesty/people’s confidence in the administration of justice or bringing or tending to bring the court into disrepute or disrespect.
What happened since: Additional cases were pursued against Sanjiv Bhatt, one of which went back to 1989, and he is now in prison. Tushar Mehta went on to become solicitor general of India.
Sahara-Birla diaries case
During CJI Khehar’s tenure, the Sahara-Birla diaries case got assigned to Justice Arun Mishra. The case was heard as an Interlocutory Application in the pending challenge against the appointment of K.V. Chowdary, as the central vigilance commissioner and T.M. Bhasin as vigilance commissioner.
In its application, the NGO, Common Cause sought a probe into the Income Tax department’s failure to hand over documents recovered during a raid in 2013 at the offices of the Aditya Birla group of companies – which suggested bribery of public servants – to the CBI. One of the entries suggested payment of Rs. 25 crore to the then Gujarat chief minister, and the present prime minister, Narendra Modi. The person in charge of the income tax investigations at that time was K.V. Chowdary.
In his order issued on January 11, 2017, Justice Arun Mishra, (who at that time had still not become senior enough to preside over a bench) sitting with Justice Amitava Roy, dismissed the application moved by Common Cause. Reason: high constitutional functionaries cannot be subject to investigation on the basis of loose papers.
Soon allegations surfaced that when Justice Arun Mishra had celebrated the wedding of his nephew at his official residence in Delhi as well as his residence in Gwalior, many BJP leaders, including the chief minister of Madhya Pradesh, Shivraj Singh Chouhan, were present at the event. Chouhan was one of the alleged recipients of money in the Sahara spreadsheets, recovered by the Income Tax department during the raid.
Also Read: Five Questions We Have to Ask Before the Birla-Sahara Payoff Case Is Buried for Ever.
Later, on July 2, 2018, Justice Arun Mishra (sitting with Justice Mohan M. Shantanagoudar) also dismissed the main petition filed by Common Cause challenging the appointment of Chowdary as the CVC and Bhasin as the VC on the ground that they did not fulfil the criterion of impeccable integrity, required for the post.
“Such complaints (against Chowdary and Bhasin) cannot be taken on face value. Even against very honest persons, allegations can be made. Those days have gone when filing of the complaints was taken as serious aspersions on integrity. Ideally, there should not be any serious complaint as the filing of same raises eyebrows. As in the instant matter, complaints have been looked into and we decline to interfere”, the bench held.
What happened since: The Birla-Sahara papers were never probed; after his retirement as CVC in 2019, K.V. Chowdary was made a board member of Reliance Industries.
From Loya to Lalu and Haren Pandya
The assignment of politically sensitive cases to Justice Arun Mishra by successive chief justices of India was a major reason behind the press conference by four senior judges of the Supreme Court on January 12, 2018. As a result of their public stand, the petition seeking a probe into judge B.H. Loya’s death – which was to be listed before Justice Arun Mishra – was later heard by the then CJI, Dipak Misra, sitting with Justices A.M. Khanwilkar and D.Y.Chandrachud. But the change made no difference to the apprehended outcome: It was dismissed. The case was specially sensitive as Loya’s mysterious death led to a situation in which Amit Shah – then BJP president, and now Union home minister – got discharged from the Sohrabuddin-Kausar Bi murder case without even having to stand trial. The apex court relied heavily on statements by Justice B.R. Gavai, then a Bombay high court judge, that Loya’s death was due to natural causes.
What happened since: The Sohrabuddin case – which had begun on the basis of the Supreme Court’s intervention – eventually collapsed with all the accused being acquitted. Justice B.R. Gavai was elevated to the Supreme Court.
Also Read: How the Sohrabuddin Case Was Allowed to Collapse
State of Jharkhand through S.P., CBI v Lalu Prasad and Others was another politically sensitive case, which was assigned to the bench presided by Justice Arun Mishra. Sitting with Justice Amitava Roy, he decided the matter on May 8, 2017. The former Bihar chief minister, Lalu Prasad Yadav was being tried in the fodder scam. The bench held that the conviction for one offence does not bar subsequent trial and conviction for another offence even if some ingredients of these two offences are common. Ruling it out as a case of double jeopardy, the bench held that it cannot be said that for the same offence the accused were being tried again. As Article 20(2) of the Constitution bars double jeopardy, the high court had quashed the charges against Yadav, while the Supreme Court revived them. Besides, the CBI, which was prosecuting the case, did not file its appeal within the limitation period. After passing strictures against the CBI for its lethargy, the bench directed the trial court to expedite the trial.
What happened since: Lalu Prasad Yadav is still in jail.
Besides the above, Justice Arun Mishra was assigned the crucial Haren Pandya murder case, in which the bench comprising him and Justice Vineet Saran, reversed the acquittal of the accused by the high court.
Also read: The Shadow of Haren Pandya’s Case Lies Long Over Justice Arun Mishra
From medical scam to sexual harassment, helping CJIs judge their own cases
Justice Arun Mishra was part of the bench during CJI Deepak Misra’s tenure when he set up a five-judge bench at short notice to set aside Justice J. Chelameswar’s order to refer the medical college bribery case to a larger bench.
On November 9, 2017, the bench of Justices J. Chelameswar and S. Abdul Nazeer found it appropriate that Kamini Jaiswal’s petition be heard by the first five judges of the Supreme Court in terms of seniority, (from 2 to 6 as the allegations were against the CJI) in view of the disturbing allegations in the FIR, which pertain to the court. On November 10, 2017, the hastily set-up five judge bench overruled it, before the Justice Chelameswar-led five judges bench could hear it on November 13, 2017.
What happened subsequently is history. On November 14, 2017, the three-judge bench which included Justice Arun Mishra dismissed Kamini Jaiswal’s petition seeking inquiry into the allegations. Clearly, the judgment offered lessons on how to turn the tables on one’s critics, besides holding that the CJI as master of the roster could assign cases to benches, hear and decide them himself even if they pertained to allegations against him.
Also Read: The Curious Saga of How the Chief Justice of India Handled Two Medical College Cases
The same bench dismissed another petition filed by the Campaign for Judicial Accountability and Reforms (CJAR) seeking similar relief by imposing exemplary costs.
In 2019, when Ranjan Gogoi was CJI, Justice Arun Mishra played a key role in the Supreme Court’s controversial handling of a former court employee’s sexual harassment charge against the chief justice. Justice Mishra was drafted by Gogoi to be part of a special bench the chief himself convened on a Saturday to address the woman’s charges. The hearing saw Gogoi declare his innocence and attack the integrity of woman and her family. The bench also entertained a wild allegation by a lawyer that the accusation against the CJI was part of a plot by corporate fixers to destabilise the judiciary an order a separate inquiry.
Also Read: From the Supreme Court, a Reminder that Justice Was Sacrificed to Save a Judge
The order issued at the end of the hearing was signed only by Justices Arun Mishra and Sanjiv Khanna and urged the media “to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary”.
The investigation into the wider conspiracy was handed over to a retired judge, Justice A.K. Patnaik, but Justice Mishra has chosen not to act on his report though it was submitted in October 2019.
What happened since: The woman, who had been sacked on Gogoi’s watch was reinstated by the Supreme Court in January 2020. Gogoi went on to join the Rajya Sabha as a government nominee.
Nageswara Rao as interim CBI director
In Common Cause v Union of India, the challenge was to the appointment of Nageswara Rao as the interim director of CBI in 2019 on the ground that it was arbitrary and illegal. As The Wire’s coverage of CBI v CBI showed, the matter was listed before the bench of Justices Arun Mishra and Navin Sinha, after three judges including the then CJI, Ranjan Gogoi recused from hearing the matter. The Arun Mishra bench, however, rejected the challenge saying that the appointment of the interim director had been authorised by the high powered selection committee under section 4A of the Delhi Special Police Establishment Act, 1946.
What happened since: Rao was made DG, Fire Services in July 2019 and retired from the police service last month.
Also Read: Former Cops Blast Ex-CBI Interim Chief for Communal Tweets
The Wire v Jay Shah
In August 2019, The Wire withdrew its petitions from the Supreme Court seeking the quashing of a criminal defamation case and civil defamation suit filed by Union home minister Amit Shah’s son, Jay Shah, and said it would defend itself in the trial court in Gujarat. Part of the reason for its decision was, of course, the surprise listing of the case before Justices Arun Mishra, M.R. Shah and B.R. Gavai, even though the matter should ordinarily have been heard by Justice D.Y. Chandrachud or Justice A.M. Khanwilkar, who had been part of earlier hearings on the then CJI, Dipak Misra’s bench.
Screenshot of questionnaire sent to Jay Amit Shah
Despite the withdrawal of the petition, the absence of any arguments on merits by The Wire‘s counsel and having himself asked in open court, on an earlier date, what the case was about when it was called, Justice Arun Mishra complained about the media indulging in “yellow journalism” by publishing stories without giving sufficient time to respond to queries.
This was a non-sequitur in the instant case since the story on Shah’s business affairs had been published on October 8, 2017, two days after questions had been sent to him and his replies were not only reflected fully in the story but published separately as well.
During the brief hearing, Justice Mishra turned to solicitor general Tushar Mehta, who happened to be in court, and asked whether a case could be withdrawn like this. Should the Supreme Court not consider the larger questions involved, the judge asked.
Mehta said he agreed with Justice Mishra, but failed to reveal his own interest in the matter. In October 2017, he sought and received permission from the Union law ministry to represent Jay Amit Shah in any matter arising out of The Wire’s reporting on the BJP leader’s son.
No urgency in habeas corpus cases
While Chief Justice S.A. Bobde and his predecessor, Ranjan Gogoi, failed to prioritise hearings on the constitutional questions arising from the abolition of Jammu and Kashmir’s special status in August 2019, politicians kept in detention without charge for more than a year who found their cases marked to Justice Arun Mishra have also been unable to secure relief.
Justice Mishra heard habeas corpus petitions filed on behalf of the former chief minister of the state, Mehbooba Mufti and the former Union minister, Saifuddin Soz. While the one filed by Mufti’s daughter, Iltija was not heard after February 26 , the one filed by Soz’s wife, Mumtazunnisa Soz was dismissed by the Mishra bench simply relying on the affidavit filed by Jammu and Kashmir administration that Soz was not in detention. Soz was shown by television channels unsuccessfully trying to leave his home in Srinagar that evening but no case of contempt was ever filed against the state administration for having misled the court.
What happened since: Mufti and Soz remain in detention
Rajasthan crisis
In the recent political crisis in Rajasthan which threatened the stability of the Congress government led by Ashok Gehlot, the Justice Arun Mishra bench effectively declined any relief to the ruling party in the state by refusing to stay the Rajasthan high court’s order restraining the assembly speaker from disqualifying the Congress’s rebels led by Sachin Pilot before the trust vote. It is another matter, however, that the crisis resolved itself by the coming together of the rival groups in the Congress.
In Part II: How Justice Arun Mishra’s conservatism influenced his neglect of judicial precedents
Justice Arun Mishra’s Social Conservatism a Key Factor in His Neglect of Judicial Precedents
His judgments on state policy for places of worship, obscenity and gender justice seem to reflect personal values more than law.
Justice Arun Mishra’s Social Conservatism a Key Factor in His Neglect of Judicial Precedents
One case in which Justice Arun Mishra ignored precedent was when he held that the government has a duty to maintain the deteriorating ‘lingam’ at the Mahakaleshwar temple in Ujjain. Illustration: The Wire
V. Venkatesan
V. Venkatesan
Subscription
One-Time
Support Investigative Journalism
₹ 499.00
Frequency: Monthly
Support In-Depth Reporting
₹ 399.00
Frequency: Monthly
Support Daily Reporting
₹ 199.00
Frequency: Monthly
Support The Wire
Powered by
LAW
02/SEP/2020
This is the second in a five-part series examining the judicial career and pronouncements of Justice Arun Mishra, the Supreme Court judge who retires on September 2. See also: Part 1 | Part 3 | Part 4
New Delhi: Judges are often categorised as having conservative, moderate or liberal philosophies of law and of judicial interpretation. How a judge decides a case with constitutional underpinnings reflects her or his judicial decision-making philosophy as well as ideological leanings, personal attitudes, values, political philosophies or policy preferences. Ideally, judges ought to decide cases divorced from their personal values, but they don’t – they largely decide them in consonance with their own beliefs and values.
The Prashant Bhushan matter shows how the case law on contempt of court could be differently interpreted by conservative and liberal judges or by the same judges differently at different times, depending on their unstated compulsions to decide cases in a particular way.
Some Supreme Court judges are likely to appear more liberal or conservative depending on the nature of the cases before them. A study of a judge’s rulings during her or his tenure, therefore, can guide us to the overall ideological orientation of the court over time.
A conservative approach
Justice Arun Mishra’s conservatism largely influenced his rulings concerning religion. In his 2018 judgment in Sarika v Administrator, Shri Mahakaleshwar Mandir Committee, Ujjain (M.P.) & Others, he held that the government has a duty to maintain the deteriorating ‘lingam’ at the Mahakaleshwar temple in Ujjain. Importantly, Justice Mishra, in this judgment, did not refer to Chief Justice Dipak Misra’s earlier judgment on the restoration of religious places which were destroyed in the 2002 Gujarat riots in which he ruled that the state had no right to spend public funds on their restoration [State of Gujarat v the IRCG]. As Faizan Mustafa pointed out in an article in The Wire, what should concern one is the court’s reasoning, and not the final outcome of the case.
Again, while Justice Arun Mishra cited the court’s 2011 judgment in Prafull Goradia v Union of India wherein the apex court upheld the constitutionality of the Haj subsidy on the grounds that a small amount spent on religions will not be violative of Articles 14 and 15 of the constitution, he ignored its 2012 judgment in Union of India v Rafique Sheikh Bhikan, where the court directed the government to phase out the Haj subsidy over a period of 10 years.
Illustration: Pariplab Chakraborty
On Tuesday, the bench comprising Justices Arun Mishra, B.R.Gavai and Krishna Murari issued fresh directions to preserve the lingam and for its upkeep. The bench has also directed the Centre to contribute Rs.41.30 lakh for the purpose as early as possible. The court is likely to monitor the case further, and has sought detailed project reports for repair and maintenance works at the temple. For preservation and maintenance of Chandranageshwar temple, the bench has directed submission of a comprehensive plan and its implementation. The bench expressed its concerns that of late, “unfortunately the performance of necessary rituals is the most neglected aspect in the temples, and new Poojaris do not understand them; the same should not be the state of affairs. There is no scope for commercialisation. The myriad religious rituals and ceremonies are to be performed regularly.” This is perhaps the first time that the Court has found it appropriate to micro-manage the functions and daily rituals of a Hindu temple.
More recently, in Nishikant Dubey v Union of India, Justice Arun Mishra held that total restriction on worship because of COVID-19 by the public at the Baidhyanath Jyotirlinga temple at Deoghar during the month of Shravan is unreasonable. “We earnestly request them (the state government) to find out a possibility of limited entry of general public in temples, churches and mosques in the state,” the bench comprising Justices Mishra, B.R. Gavai and Krishna Murari said while observing that the state is duty-bound to enforce social distancing norms. Witnessing temple rituals through live streaming cannot be a substitute for a physical visit to places of worship, the bench observed and asked, “when other things are functioning (during the unlock period) why can’t states manage temples”.
Also read: How Justice Arun Mishra Rose to Become the Most Influential Judge in the Supreme Court
The comparison of temples with other secular activities and the drawing of an inference of discrimination against places of worship by the Justice Arun Mishra bench is reminiscent of what one of the dissenting conservative judges of the US Supreme Court held in a recent case, and which drew sharp criticism from observers.
Unlike secular activities, religious events are distinguishable as large gatherings in which people remain in close proximity for extended periods, thus increasing the threat of spread of coronavirus. The Mishra bench, as its counterparts among the conservative judges of the US Supreme Court, did not understand such policy concerns of the state.
Ironically, Justice Arun Mishra excused himself from farewell parties on the eve of his retirement citing the ongoing pandemic, but when it came to permitting public gatherings at religious functions, he believed social distancing norms could provide the remedy.
The Rehana Fathima case
On August 7, while dismissing the anticipatory bail plea of an activist from Kerala, Rehana Fathima, Justice Arun Mishra, who presided the bench comprising himself, and Justices B.R.Gavai and Krishna Murari, asked her counsel, senior advocate Gopal Shankaranarayanan, why he brought this case before him at the fag end of his tenure.
Fathima is fighting allegations of child pornography following her uploading on YouTube a video clip of her two minor children painting on her body. She was before the bench on an appeal against the Kerala high court’s decision to deny her anticipatory bail in the case.
A sense of embarrassment of having to hear the facts of this case, and the petitioner’s contentions, merely because she approached the court at the fag end of his judicial career was discernible in Justice Mishra’s initial response. The inference was that it would have been all right if a similar case unfolded itself before him early in his judicial career. Justice Mishra might have, in the alternative, wanted to convey that even hearing this matter at any point would mean a blot in his otherwise “illustrious tenure” as judge.
Also read: In Bhushan Sentence, Justice Mishra Criticises 2018 Judges’ Press Conference Too
In either sense, Justice Mishra’s revulsion over the facts of the case clearly underlined his judicial philosophy: conservatism and an inability to separate his personal temperament and world view from that of his responsibility to apply the law to the facts of the case before him. In other words, Justice Mishra is clearly entitled to his ‘moral’ and ‘ethical’ views in a given matter, but to do justice in the case before him, many would have expected him to consider the merits of her plea for anticipatory bail, rather than let his philosophical attributes influence his judicial mind.
What the court missed
Ironically, as a result, Justice Mishra did not enquire into whether she was entitled to anticipatory bail in the case. He did not even ask the counsel for the state government – who was present during the hearing – whether her custodial interrogation was required by the police to unravel the case. Not surprisingly, the state’s counsel chose to be silent, as Justice Mishra was arguing on their behalf.
“We find no ground to interfere with the impugned order(s) passed by the high court. The Special Leave Petitions are, accordingly, dismissed. Pending interlocutory application(s), if any, is/are disposed of,” the bench said in its brief order.
The order clearly stemmed from non-appreciation of the error in the Kerala high court’s order which failed to see whether Section 13 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) was attracted in the case, as alleged.
The essential ingredient to be satisfied under this provision is the ‘indecent or the obscene representation of the child’. The nudity of the mother cannot be an indecent representation of the child under this provision. The high court interpreted it to include in its ambit the act of involving a child through any medium for distribution of pornographic material. The high court’s conclusion is clearly contrary to its own appreciation of the children’s painting talents while watching the video.
Like the high court, the Justice Arun Mishra-led bench in the Supreme Court also erroneously went into the merits of the case, rather than answering whether she satisfied the criteria for the grant of anticipatory bail. Anticipatory bail could be granted with conditions to prevent the accused from repeating the offence she is alleged to have committed.
Also read: Here’s What the AG Wanted to Say About the Judiciary, Before Justice Arun Mishra Stopped Him
More significant, the allegedly offensive video has not been taken down by YouTube itself, despite the outrage expressed against its supposed obscenity. Besides, the police has not invoked Section 292 IPC against her, although the provision deals with obscenity.
What is difficult to understand is that Justice Mishra’s bench has endorsed the high court’s reasoning that she would not have attracted the penal provisions if she had experimented with her children within the four corners of her home, and refrained from uploading it on the social media. If her conduct does not constitute an offence, if committed within the four corners of her home, how could it become an offence if uploaded on social media, especially if there is no pornographic material sought to be disseminated through the children?
Clearly, the denial of anticipatory bail to Fathima by both the high court and the Supreme Court sweeps many relevant issues under the carpet, which will hopefully be clarified during the trial.
Precedent ignored
In Sushila Aggarwal and others v State (NCT of Delhi) and another, a constitution bench, presided by Justice Mishra, delivered a detailed judgment on the question of anticipatory bail on January 29. The bench agreed in this case that Section 438 CrPC has an intrinsic link with Article 21 in as much as it seeks to balance the state’s power and responsibility to investigate offence, with its duty to protect individual rights and liberties of citizens. Article 21 raises the presumption of innocence in favour of the accused; consequently, this has to be at the centre of every consideration of penal statutes and their implementation, the bench concurred. Section 438 CrPC, being part of procedure established by law, is to be construed in a fair, just and reasonable manner, the bench suggested citing precedents supporting such a view.
The bench held in this case that whether to grant anticipatory bail is a matter of discretion of the judge, but if granted, it should be in favour of the accused without any restriction as to the time of its validity, unless there are any peculiar features necessitating the court to limit it.
More important, an order of anticipatory bail, the bench held, should be confined to the specific offence or incident, for which apprehension of arrest is sought; it cannot operate in respect of a future incident that involves commission of an offence. Therefore, Justice Mishra’s reasoning that denial of bail to Fathima is justified because that will ensure she won’t repeat the alleged offence again is bizarre.
The Supreme Court held in Sushila Aggarwal that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses) likelihood of fleeing justice (such as leaving the country), etc.
Also read: Justice Kurian Joseph, Former SC Judge, Questions Mishra Bench Handling of Contempt Questions
Neither the high court nor the Supreme Court cared to explain how Fathima did not satisfy the court on any of these grounds. Instead, Justice Mishra told her counsel that the high court had gone into the merits of the case – which it ought not to have at the pre-trial stage, so as not to influence the trial court proceedings.
Therefore, Justice Mishra’s neglect of the judgment in Sushila Aggarwal, delivered by a constitution bench presided by him, to deny anticipatory bail to Fathima is of a piece with general lack of judicial discipline, so characteristic of his judicial interventions.
Vineeta Sharma v Rakesh Sharma
The Justice Arun Mishra-led bench’s judgment on August 11 interpreting the 2005 amendment to Hindu Succession Act, 1956 has come in for universal acclaim for its bold decision to give daughters equal rights to inheritance and make them coparceners, on par with sons in a family.
Even in this widely recognised pro-women judgment, as legal scholar Dr Saumya Uma told The Wire, Justice Arun Mishra could not completely free himself from the oft-repeated stereotypes, characteristic of a distant era in the past, and of disguised patriarchy: “A son is a son until he gets a wife. A daughter is a daughter throughout her life.” Does the judgment pit the daughter against the daughter-in-law? This is hardly a template for gender equality, those who otherwise hail the judgment are likely to say.
s Judge, Arun Mishra Was Almost Predictable When the State Was Before Him
When the state was appellant, he invariably found for the state. When the state was a respondent, he also normally found for the state, except in a handful of cases where his rulings were controversial.
As Judge, Arun Mishra Was Almost Predictable When the State Was Before Him
V. Venkatesan
V. Venkatesan
Subscription
One-Time
Support Investigative Journalism
₹ 499.00
Frequency: Monthly
Support In-Depth Reporting
₹ 399.00
Frequency: Monthly
Support Daily Reporting
₹ 199.00
Frequency: Monthly
Support The Wire
Powered by
LAW
03/SEP/2020
This is the third in a five-part series examining the judicial career and pronouncements of Justice Arun Mishra, the Supreme Court judge who retires on September 2. See also: Part 1 | Part 2 | Part 4
Should Supreme Court judges be predictable? Does the predictability of a judge suggest that she or he has already made up their mind about the outcome of a case, and therefore, howsoever persuasive counsel is, their opinion is unlikely to change?
In law, predictability is considered very important. People need to know the rules and they cannot plan their lives unless they know the law – and how it operates – in advance.
Illustration: Pariplab Chakraborty
Despite differences in temperament and personal attributes, it is reasonable to predict that a judge will not compromise her or his or her oath of office, and therefore, can be expected to protect constitutional values, despite challenges from any quarter. But judging actions and laws can also leave room for reasonable doubt, and the best judges are those who grapple with the facts and the law fairly and not predictably, and this attribute will inevitably lead them in unexpected directions.
Justice Arun Mishra might have surprised many when he praised Narendra Modi as “an internationally acclaimed visionary and a versatile genius who thinks globally and acts locally” in February this year. The bar was upset by his effusiveness and said so. But for those who have been following his judgments, his personal encomium for the prime minister expressed from a public platform in Modi’s presence was hardly a surprise, because as the biggest litigant before the court, the Centre always stood to gain in cases listed before him. When the very embodiment of that biggest litigant was physically present before him, how could he have withheld his admiration?
How then will history place Justice Arun Mishra in the scale of predictability? There are three broad, but qualified, inferences that one can make from his judgments.
1. He always ruled in favour of the state when it was an appellant in a case before the Supreme Court.
In July 2020, a Justice Arun Mishra-led bench set aside a Delhi high court order asking the National Investigation Agency to explain the circumstances in which it had effected the “hasty transfer” of Gautam Navlakha from Tihar Jail in Delhi to Mumbai despite the pendency of Navlakha’s special bail plea on health grounds.
As The Wire reported,
Navlakha was arrested in April this year and charged under the draconian Unlawful Activities (Prevention) Act in the Bhima Koregaon case…
On May 27, the high court asked for all the relevant documentation used to transfer Navlakha away from Delhi to jail in Mumbai. Justice Anup Bhambhani had then expressed his reservation about the “inexplicable, frantic hurry” the NIA displayed in shifting Navlakha to Mumbai from Delhi, while the proceedings in the court on his interim bail petition were still pending. Navlakha was effectively removed from the high court’s jurisdiction by the NIA.
Instead of following the Delhi high court order, the NIA moved Supreme Court, where the Justice Arun Mishra bench first stayed the HC proceedings and then overturned its order, and also expunged Justice Bhambhani’s remarks against the NIA.
§
In Union of India v State of Maharashtra in 2018, the Centre sought a review of a Supreme Court order – delivered by a two-judge bench earlier in this year – issuing guidelines to deal with the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
The guidelines laid down by Justices Adarsh Kumar Goel and Uday Umesh Lalit in Subhash Kashinath Mahajan v State of Maharashtra on March 20, 2018 had become controversial with SC and ST organisations vociferously protesting what they saw as a dilution of the Act’s denial of anticipatory bail to the accused. After Justice Goel retired, a three-judge bench comprising Justices Arun Mishra, M.R.Shah and B.R. Gavai was constituted to hear the review petition.
In their review judgment, the Justice Arun Mishra bench said public servants already have a remedy in false cases under Section 482 Cr.P.C., and can approach high courts for quashing such FIRs.
The guidelines laid down by the Goel-Lalit bench were recalled. Those guidelines had noted that individuals accused under the Act could not be arrested without the written permission of the senior superintendent of police of the district and that a preliminary enquiry would be required for registering a case under the Act.
The Arun Mishra bench upheld the amendments made by parliament in the Act to nullify the guidelines issued by Goel-Lalit bench. The amendment ruled out any provision for anticipatory bail for an accused under the Act.
§
In Union of India v Mool Chand Khairati Ram Trust, (decided on July 9, 2018), a bench of Justices Arun Mishra and Lalit allowed the Centre’s appeal against the Delhi high court verdict which had quashed its directions to hospitals to strictly follow the policy of providing free treatment to 25% outpatient department patients and 10% of in-patient department patients in terms and conditions of the allotment of the land to them at concessional rates.
The high court had quashed the Centre’s directions on the ground of absence of legislative backing. The Supreme Court held that the government was competent to enforce the contractual and statutory liability of the hospitals concerned under its executive powers. There was no need for a law, because no new restriction on the right to pursue a profession has been imposed under Article 19(6) of the Constitution.
§
In Union of India v Jai Kishun Singh, decided by a bench of Justices Vikramajit Sen and Arun Mishra (and authored by Justice Arun Mishra) on September 10, 2014, the Patna high court had set aside the Centre’s order cancelling the pension payable to a freedom fighter. The Centre claimed that the respondent did not participate in the freedom struggle as he was a child of seven to eight years in 1942, and therefore, he was not eligible to receive it. Participation in the freedom struggle at such a young age was highly improbable, and therefore cancellation of pension to the respondent was not unwarranted, he ruled on behalf of the bench.
§
In State of Madhya Pradesh v Sabal Singh (dead) by LRS and Others, a bench of Justices Arun Mishra and M.R. Shah, on October 14, 2019, decided a land dispute in favour of the state government. In this case, the respondents had filed a suit for declaration of Bhumiswami rights and permanent injunction restraining the state from interfering in their possession of land. The state, however, treated the respondent as encroacher of agricultural land, and threatened him with dispossession. The Supreme Court held that once the trial court and the first appellate court recorded a concurrent finding of fact that the land was not under personal cultivation, it was not open to the high court to interfere with the findings of fact, which was based on the proper appreciation of evidence on record. Even the plaintiff/ respondent was unable to state whether there was any crop in 2007 before zamindari abolition, the Supreme Court reasoned.
§
In State through Narcotics Control Bureau v Yusuf and others, Justice Arun Mishra said the high court’s acquittal of respondents found guilty by the trial court under the Narcotic Drugs and Psychotropic Substances Act, 1985 was unsustainable. He, therefore, remitted the case to the high court to decide the appeal afresh in accordance with law duly considering the reasoning employed by the trial court and the entire evidence.
2. When the state was a respondent, he didn’t mechanically favour the state, but some of the exceptions when he ruled against the state, were controversial.
In Chebrolu Leela Prasad Rao and Others v State of Andhra Pradesh, in which he presided over a constitution bench of five judges, Justice Mishra quashed, in a unanimous judgment, 100% reservation to Scheduled Tribe candidates out of whom 33.3% was reserved for women for the post of teachers in the schools in the scheduled areas in Andhra Pradesh. The judgment, in the words of sociologist Nandini Sundar, is perilously close to dismantling the entire edifice of the Fifth Schedule to the Constitution. As non-adivasis from other districts flood Scheduled areas, leading to clear demographic change, the clamour to do away with the protective provisions of the Fifth Schedule is only getting louder, she has observed.
The Andhra Pradesh G.O. of 2000 was aimed at promoting education in tribal areas and addressing the problem of rampant teacher absenteeism. As anyone even slightly acquainted with the problems of tribal areas knows, non-tribal teachers are often reluctant to travel to or live in remote adivasi hamlets. Another big problem is language. Many non-tribals, including lower government officials, have lived for years in tribal areas without feeling the need to learn tribal languages. At the primary level, mutual incomprehension between non-tribal teachers and tribal students hampers the basic education of children, she adds.
As Sundar makes clear, it is as though the Arun Mishra bench didn’t understand the history and rationale of Fifth Schedule to the constitution. It is one judgment which needs to be revisited by a larger bench. The earlier, the better.
§
In Devinder Singh v State of Punjab through CBI, Justice Arun Mishra, while sitting with his senior judge, Justice V.Gopala Gowda, ruled in favour of the appellant. In this case, the appellants were police officers accused of killing four persons in a fake encounter in 1993. The appellants had obtained sanction from the state government, but not from the Centre as required under the Punjab Disturbed Areas Act, 1983. The high court had held that since it was a fake encounter, the same could not be said to be an act in discharge of official duties, and hence sanction was not required. In his judgment, Justice Arun Mishra, directed the trial court to proceed on the basis of the prosecution version, and re-decide the question of sanction afresh in the light of evidence emerging that there was a reasonable nexus of the incident with discharge of official duty.
In Amal Kumar Jha v State of Chhattisgarh , which Justice Arun Mishra decided while sitting with Justice Gopal Gowda as the presiding Judge on April 26, 2016, the Supreme Court allowed the appeal of a government doctor accused of medical negligence resulting in the death of a patient by holding he could not have been prosecuted without sanction in accordance with law by the competent authority. The doctor’s conduct complained of was intrinsically connected with discharge of his official duty, the bench held.
In Selvaraj v State of Karnataka, Justice Arun Mishra ruled in favour of the appellant by holding that the high court erred in reversing his acquittal under the Prevention of Corruption Act.
In Kala v State through Inspector of Police, he acquitted the appellant giving her the benefit of doubt as the chain of circumstances was not complete.
§
In Wildlife First v Ministry of Forest and Environment, the constitutional validity of the Forest Rights Act, 2006 is under challenge and the case has been pending since 2008. In 2014, the petitioners – mainly conservationists – filed an interlocutory application, requesting the court to order states to evict illegal forest dwellers.
On February 13, 2019, the bench of Justices Arun Mishra, Navin Sinha and Indira Banerjee, ordered states to evict all individuals who had their claims rejected under the Act by July 24, 2019. The bench directed the Forest Survey of India to conduct a satellite survey and place on record encroachment positions before and after evictions. It also directed the chief secretaries of various states to submit affidavits explaining why they had failed to evict individuals, who had had their claims rejected.
Following an outcry by affected tribals and other stakeholders, and the Centre, which intervened on their behalf, the bench of Justices Arun Mishra, Navin Sinha and M.R.Shah, on February 28, 2019 kept its February 13, 2019 order on hold so far as eviction is concerned.
This pending case is likely to be taken up by another bench after Justice Arun Mishra retires.
§
Savelife Foundation v Union of India was a public interest litigation, and the Centre did not adopt an adversarial stand in the proceedings. As the plea was for the development of a supportive legal framework to protect bystanders and passers-by who render help to victims of road accidents, the court constituted a committee consisting of eight members to submit suggestions. The Centre prayed that its guidelines notified on May 12, 2015 might be declared to be enforceable by Supreme Court so that it is binding on all the States and union territories until the Centre enacts a law to this effect.
§
In Bikram Chatterji v Union of India, (23.7.2019), the Justice Arun Mishra bench which included Justice Lalit, addressed the question of whether builders and promoters can be permitted to usurp and divert the money of home buyers and whether the latter can have no remedy.
Applying the public trust doctrine, the bench held that it imposes on the state and its functionaries a mandate to take affirmative action for effective management, and the citizens are empowered to question its effectiveness. The state government, the bench held, is bound to ensure that builders act in accordance with the objective behind the acquisition of land and the conditions on which allotment had been made. The public authorities, the bench held, are duty-bound to observe that the leased property is not frittered away along with the money of the home buyers. The bench appointed the National Buildings Construction Corporation (NBCC) to complete the various unfinished projects of Amrapalli Group of companies, whose registration under Real Estate Regulatory Authority stood cancelled. The court directed the Centre and the state governments to ensure that housing projects are completed in time-bound manner as contemplated under RERA and home buyers are not defrauded.
3. Apart from the few exceptions above, Justice Arun Mishra mostly ruled in favour of the state when the latter was a respondent.
In Anand Teltumbde v The State of Maharashtra, a bench comprising him and Justice M.R. Shah, rejected anticipatory bail pleas of Bhima Koregaon case accused Gautam Navlakha and Anand Teltumbde on the ground that Section 43D(4) of the Unlawful Activities (Prevention) Act, 1967, excludes the operation of Section 438 of the Cr.P.C. The bench opined that it could not be said that no prima facie case was made out and directed them to surrender within three weeks from March 16.
Chapters 4 and 6 of UAPA deal specifically with “terrorist acts” and “membership with the terrorist organisation” respectively and Section 43D(5) of the UAPA – dealing with a prima facie case – kicks in only if the offences alleged prima facie fall under these chapters. There is sufficient reason to believe that the Arun Mishra bench by avoiding any discussion of the facts of the case in detail – by citing the petitioners’ request as an excuse – relied on the respondents’ plea mechanically and dismissed the plea for anticipatory bail perfunctorily.
§
In Christian Medical College, Vellore Association v Union of India, a bench of Justices Arun Mishra, Vineet Saran and M.R. Shah dismissed the challenge to National Eligibility-cum-Entrance Test (NEET) for admission to MBBS course in each academic year. The bench held in this case that the rights of religious and linguistic minorities under Article 30 are not in conflict with other parts of the constitution, and the balancing of rights is a constitutional intendment in the national and more enormous public interest. Reasonable regulatory measures can be provided without violating rights available under Article 30 of the Constitution to administer an institution, the bench ruled. The regulatory measures by prescribing NEET is to bring the education within the realm of charity which character it has lost, the bench reasoned.
But doubts persist over whether standardised common tests may discriminate against the poor and the under-privileged, and the bench has apparently ignored this dimension of the problem.
In most land acquisition cases in which there were disputes over compensation, Justice Arun Mishra was inclined to dismiss the appeals filed by private individuals in favour of the respondent-state. Where the state and its instrumentalities were appellants before him, he either allowed the appeals or partly decided them in their favour.
§
In the latest case of Sayantan Biswas & Others v National Testing Agency (NTA) and others, which the Arun Mishra-led bench heard on August 17, the bench refused to postpone the NEET and JEE (Main) examinations, simply relying on the submissions of solicitor general Tushar Mehta. “In our opinion, though there is pandemic situation, but ultimately life has to go and the career of the students cannot be put on peril for long and full academic year cannot be wasted”, the bench reasoned . No wonder, the order was disappointing as it was issued merely on the basis of the official claims, without examining the facts on the ground.
Justice Arun Mishra's Disregard for Precedent Led to Charge of Judicial Indiscipline
From land acquisition and contempt to Adani and free speech, the judge showed he did not care much for the principle of stare decisis – in which courts 'stand by things decided'.
Justice Arun Mishra's Disregard for Precedent Led to Charge of Judicial Indiscipline
Power lines supplying electricity by stated owned Eskom run through sugar cane fields on a Tongaat Hulett farm in Shongweni, South Africa April 29, 2018. REUTERS/Rogan Ward - RC146BBC3590
V. Venkatesan
V. Venkatesan
Subscription
One-Time
Support Investigative Journalism
₹ 499.00
Frequency: Monthly
Support In-Depth Reporting
₹ 399.00
Frequency: Monthly
Support Daily Reporting
₹ 199.00
Frequency: Monthly
Support The Wire
Powered by
LAW
04/SEP/2020
This is the fourth in a five-part series examining the judicial career and pronouncements of Justice Arun Mishra, the Supreme Court judge who retired on September 2. See also: Part 1/ Part 2/ Part 3
New Delhi: The legal doctrine of stare decisis says that cases with similar scenarios and facts should be approached in the same way. It binds courts and judges to follow legal precedents set by previous decisions. Of course, stare decisis does not mean a previous court ruling cannot be overruled in the light of changed circumstances and appropriate reasoning by a bench larger in size than the previous one which had delivered it. But in the Indian judicial system, the latter bench does not overrule a previous decision unless it is found to be plainly wrong or inconsistent with the constitution.
In Re: Prashant Bhushan illustrates how the Arun Mishra bench neglected key precedents in its conviction and sentencing judgments.
The petition was filed by Mehek Maheswari – who initiated the contempt proceedings without securing the mandatory consent of the attorney general – and the administrative order which converted it as a suo motu petition was important to Bhushan’s defence because it would have thrown light on whether the court had followed its own precedents. But the bench declined his plea to be served a copy, without convincing reasons.
Illustration: Pariplab Chakraborty
The omission was not without significance. After all, in Biman Basu v Kallol Guha Thakurta, the Supreme Court had held that contempt proceedings taken up by the Calcutta high court based on the petition of an individual were not maintainable because of three infirmities. First, the petitioner did not have the written consent of the advocate general – as was required by Section 15(1) of the Contempt of Courts Act. Second, here was no order reflecting the fact that the high court, having taken note of the information made before it, had initiated suo motu proceedings on the basis of such information furnished. Third, the original contempt petition did not ask the court to take suo motu action against the appellants.
Although Maheswari was not a party before the court in Prashant Bhushan, it may be asked whether he prayed for suo motu action against Bhushan. In P.N.Duda v Shiv Shankar, which Re:Prashant Bhushan relies on, the petitioner made a specific prayer for initiating suo motu action, after failing to get the consent of the attorney general or solicitor general.
In J.R.Parashar v Prashant Bhushan, the Supreme Court observed: “In any event, the power to act suo motu in matters which otherwise require the attorney-general to initiate proceedings or at least give his consent must be exercised rarely. Courts normally reserve this exercise to cases where it either derives information from its own sources, such as from a perusal of the records, or on reading a report in a newspaper or hearing a public speech or a document which would speak for itself. Otherwise, sub-section (1) of Section 15 (of the Contempt of Court Act) might be rendered otiose”.
Similarly, in Bal Thackeray v Harish Pimpalkhute, the apex court observed in 2004: “It is also to be borne in mind that the frequent use of suo motu power on the basis of information furnished in a contempt petition otherwise incompetent under Section 15 of the Act may render the procedural safeguards of the advocate general’s consent nugatory.”
None of these precedents were of any apparent consequence for the Arun Mishra bench.
Other instances
In Islamic Academy of Education and Another (2003), a five-judge bench of the Supreme Court clarified the T.M.A. Pai judgment, delivered by 11 judges bench the previous year, and held that institutions which have a special feature and which have been admitting only students of their own community but have a fair and transparent admission procedure for at least the last 25 years can seek an exemption from a common admission test. We have seen in Part 3 of this series, how in CMC, Vellore Association v Union of India, the Justice Arun Mishra bench – even though he was presiding over a smaller bench than the one in Islamic Academy – ignored its ruling, without offering cogent reasons.
In Dheeraj Mor v Hon’ble High Court of Delhi, Justice Arun Mishra overruled a previous decision in Vijay Kumar Mishra and others, v High Court of Judicature at Patna, which had provided eligibility of judicial officers to compete for the post of district judge by way of direct recruitment.
In Dheeraj Mor, the bench found the rules framed by the Delhi high court prohibiting judicial service officers from staking claim to the post of district judge against the posts reserved for advocates by way of direct recruitment to be constitutional.
‘Judicial indiscipline’ in land acquisition matter
A great controversy was triggered in 2019 when Justice Arun Mishra presided over a five-judge bench in Indore Development Authority v Manohar Lal that was formed to decide whether a three-judge bench he had headed on a land acquisition matter was correct in overturning the judgment of another three-judge bench.
In March 2019, the Supreme Court formed a constitution bench to examine the correctness of two 3-judge bench decisions dealing with lapsing land acquisition due to compensation disputes. The controversy arose on February 8, 2018, when the three judge bench presided over by Justice Arun Mishra by a 2:1 majority in Indore Development Authority v Shailendra (Dead) set aside a 2014 decision in Pune Municipal Corporation v Harakchand Misirmal Solanki (2014) by another three-judge bench.
In Pune Municipal Corporation, the court had held that land acquisition could be declared void under section 24(2) of the Land Acquisition Act of 2013, if compensation had not been deposited in the bank accounts of the land owners or with the court. It was categorically clarified that money in the government treasury would not be treated as a payment to a landowner.
But in Indore Development Authority, the Mishra bench held that land acquisitions could not lapse due to a land-owner’s refusal to accept compensation within five years. It held that once compensation had been tendered, but the person refused to accept it, this would amount to a discharge of obligation under section 31(1) of the Land Acquisition Act, 1894.
In addition, the majority judges – Justices Mishra and A.K. Goel held the previous 2014 Pune Municipal Corporation judgment to be ‘per incuriam’, while the third judge, Justice Shantanagoudar dissented on this issue. The issue was important because acquisition lapsing under the old Act would mean that those whose lands were acquired were entitled to a much higher compensation under the 2013 Act.
The new judgment created chaos as it meant reopening various high court decisions that were settled under the principle evolved in Pune Municipal Corporation.
Following Indore Development Authority, when a similar land acquisition matter came up before a three-judge bench on February 21, 2018 in Haryana v. GD Goenka Tourism Corporation, Justices Madan Lokur and Kurian Joseph raised judicial impropriety concerns and almost indicted Justice Arun Mishra for his overruling of a decision of a coordinate bench. Both Justices Lokur and Joseph had sat on the Pune Municipal Corporation bench, and therefore, considered Justice Arun Mishra’s overruling of its decision as judicial indiscipline.
A constitution bench was therefore set up by then CJI, Dipak Misra on February 26, 2018 to decide if the 2018 coordinate bench of three judges (with one dissenting) could have invalidated the earlier decision of a unanimous three-judge bench in 2014. The matter was taken by a five-judge bench headed by Justice Arun Mishra in October 2019.
On October 24, 2019, Justice Arun Mishra first delivered an order dismissing the pleas for his recusal from hearing this case.
On 4 March 2020, the five-judge bench overturned Pune Municipal Corporation and held that land acquisition proceedings could not lapse merely due to a failure to pay compensation to landowners. It held that a lapse would only occur if the state also fails to take physical possession of the land.
The judgment, authored by Justice Mishra, did not address the issue of whether a bench can set aside a judgment of an earlier bench of the same strength, although this was the main issue on which the then CJI Dipak Misra had set up the constitution bench. But those who had sought his recusal from hearing the case stood vindicated.
The curious case of Hyderabad land acquisition
Justice Arun Mishra’s threat to use contempt action against senior advocate, Gopal Sankaranarayanan for making his submissions while hearing the Indore Development Authority case and Justice Mishra’s profuse apology the next day when senior counsel protested was widely reported in the media. What is not known is that it was the second time Justice Mishra had made the same threat of contempt to Sankaranarayanan.
The first occasion when Justice Mishra threatened Sankaranarayanan with contempt also deserves closer scrutiny.
In land acquisition for the Outer Ring Road (ORR) in Hyderabad, the Andhra Pradesh government had acquired about 5000 acres of land and had suddenly changed the alignment allegedly to benefit a private party. As a result, the final alignment went through two lakes and private lands. The A.P. high court allowed the challenge to the land acquisition and found that it was vitiated by mala fides apart from environment violations. The special leave petition by the state came before a bench headed by the then CJI Dattu, who issued notice and stayed the judgment.
Meanwhile, the state government started construction on the lands of the respondents. So they filed an application to stop the construction, which came up before a bench headed by Justice Arun Mishra. When it was called out, Justice Mishra immediately turned to attorney general Mukul Rohatgi appearing for the state and said he would be dismissing the application. When Sankaranarayanan said that as the applicant, he had the right to be heard, Mishra warned him of issuing contempt against him if he made any argument at all. As a result, the application was dismissed, rendering the case infructuous, as construction was completed in the meantime.
Eventually, Justice Mishra heard the case finally and found merit in the argument that a lot of development had taken place around the ORR and it would not be possible to change the alignment any more as the court had earlier permitted development through its interim order.
“There is ring of truth in the findings recorded by the high court as well as the submission raised by the learned counsel appearing for the respondents that alignment had been changed with respect to part of the ORR in order to oblige few influential incumbents. The submission is also supported by the report of the CBI investigation”, Justice Arun Mishra noted in his order on September 13, 2018, (in Hyderabad Urban Devt. Auth. (HUDA) & ANR v S.B.Kirloskar & Others) and found it appropriate to grant compensation at lower rates under the 1894 Act rather than those which would have been applicable under the 2013 Act.
To add insult to injury, the landowners, who had waited for more than 10 years for the outcome of the litigation, were given interest to be calculated from the date of the Supreme Court’s judgment!
Attempt to circumscribe free speech rights
In Kaushal Kishor v State of Uttar Pradesh, a five-judge constitution bench presided over by Justice Arun Mishra, was hearing matters arising out of remarks made by the Samajwadi Party politician Azam Khan in order to decide whether the right to free speech and expression – especially of those in public office – can be curtailed by the ‘right to dignity’. Although many of the issues being considered by the bench had already been decided by the court in the past, the bench seemed to be in a mood to reopen them, as if it there were no other serious issues before the court.
The very first issue framed by the bench appeared to pose a threat to the ambit of freedom of expression, guaranteed by the constitution. It asked: Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
On January 22, the bench which was about to conclude its hearing in the case, adjourned because of the absence of the attorney general for India, K.K. Venugopal. Hopefully, with Justice Arun Mishra’s retirement, this case will remain in cold storage for ever.
Reviving ‘creamy layer’ debate where it had no place
In his latest ruling in State of Punjab v Davinder Singh, Justice Arun Mishra has reopened the case for sub-categorisation of Scheduled Castes, by referring it for reconsideration by a larger bench.
The correctness of the previous ruling by a five-judge bench in E.V.Chinnaiah v State of Andhra Pradesh (2005) came for review in this case, but the bench conflated the case for sub-categorisation of SCs for distribution of quota benefits with the issue of the exclusion of the so-called ‘creamy layer’ from the SC quota. These are clearly two different issues, though the criticism of both approaches on the ground that they would tweak, without the necessary constitutional sanction, the President’s list of SCs, may be common to both.
The bench failed to appreciate that those who urge sub-categorisation of SCs to avoid unequal treatment are, however, against exclusion of the ‘creamy layer’ from the SC quota, because the latter approach ignores centuries of caste oppression and stigmatisation against the SCs. The bench also raised the question of relevance of reservations itself, and the right of an SC community to a specific quota, which were clearly outside the scope of the case before it.
Skipping precedent for Adani
The judgment in Jaipur Vidyut Vitaran Nigam Ltd. & Others v Adani Power Rajasthan Ltd & Others delivered on Monday adds to the list of cases decided by Justice Arun Mishra without respect for precedent.
As pointed out earlier, the Adani-owned APRL in 2013 sought suitable compensation from Rajasthan power distribution companies (Discoms) to offset the commercial burden it was bearing on account of increase in imported coal cost which it had to use (mainly from Indonesia) due to non-allocation of coal by the Centre as per the New Coal Distribution Policy, 2007, amended in 2013.
The APRL had already secured favourable orders from the Rajasthan Regulatory Electricity Commission and Appellate Tribunal for Electricity, although the Directorate of Revenue Intelligence (DRI), had alleged that the Adani group had artificially inflated the prices of imported coal by manipulating invoices and valuations. The Mishra bench on Monday refused to consider the allegation, unless there is a finding recorded by the competent court. The bench was not inclined to interfere with the concurrent findings of facts by RREC and APTEL.
However, in the Energy Watchdog case (2017), a two-judge bench of the Supreme Court had clearly held that an unexpected rise in the price of coal would not absolve the generating companies from performing their part of the contract. When they submitted their bids, this was a risk they knowingly took, and the risk of supplying electricity at the tariff indicated was upon the generating company, the two-judge bench had held.
On Monday, the Arun Mishra bench agreed that the factual matrix in Energy Watchdog and this case are similar; yet, it did not find that the principle laid down in that case was applicable here.
Supreme Court Gives Telecom Companies 10 Years to Pay AGR-Related Dues
A bench headed by Justice Arun Mishra held that the demand made by the DoT and the verdict delivered by the top court in the matter is final.
Supreme Court Gives Telecom Companies 10 Years to Pay AGR-Related Dues
In this representative image, telecommunication towers are pictured through hanging flower pots at a residential building in Kolkata. Photo: Reuters/Rupak De Chowdhuri/Files
PTI
PTI
Subscription
One-Time
Support Investigative Journalism
₹ 499.00
Frequency: Monthly
Support In-Depth Reporting
₹ 399.00
Frequency: Monthly
Support Daily Reporting
₹ 199.00
Frequency: Monthly
Support The Wire
Powered by
BUSINESSLAW
01/SEP/2020
New Delhi: The Supreme Court on Tuesday granted 10 years to telecom firms such as Vodafone Idea, Bharti Airtel and Tata Teleservices for paying the Adjusted Gross Revenue (AGR)-related dues to the Department of Telecommunications (DoT) with certain conditions.
The apex court asked telcos to pay 10% of the AGR-related dues by March 31, 2021.
A bench headed by Justice Arun Mishra held that the demand made by the DoT and the verdict delivered by the top court in the matter is final.
The bench asked the Managing Directors (MDs) or Chief Executive Officer (CEOs) of the telcos concerned to furnish undertaking or personal guarantee within four weeks for payment of dues.
Failure to pay the instalments of the dues would incur penalty, interest and contempt of court, the bench cautioned the telecom firms.
The top court said that issue of sale of the spectrum by telcos facing insolvency proceedings decided by the National Company Law Tribunal (NCLT).
The bench delivered its verdict on the issues, including the timeline for staggered payment of AGR-related dues amounting to about Rs 1.6 lakh crore.
While pronouncing the verdict, the bench said that till the last instalment is paid by the telcos, their bank guarantees furnished to the DoT would be kept alive.
Also read: After Hanging Fire over Delayed Govt Approvals, DoT Signs off on Jio-Brookfield Tower Deal
During an earlier hearing, the bench had heard arguments on the point as to whether spectrum can be sold by telecom companies facing proceedings under the Insolvency and Bankruptcy Code (IBC) and how the AGR-related dues can be recovered from them.
The top court in October 2019 delivered the verdict on the AGR issue, primarily its definition for calculating government dues of telecom companies such as licence fee and spectrum usage charges.
The DoT in March this year moved a plea seeking permission for allowing staggered payment of the dues by telcos over a period of 20 years.
The bench reserved the verdict on July 20 on staggered payments, saying that it will not hear “even for a second” the arguments on reassessment or re-calculation of the AGR-related dues.
Before this, it asked the telecom companies to file their books of accounts for the last ten year and give a reasonable time frame for clearing the dues.
It had said that the period of 15-20 years sought by some of the telecom companies was not reasonable and had asked the Centre as to how it would secure the payment of dues by them.
The DoT had earlier said that no demand raised against Reliance Jio and Airtel for part dues of Reliance Communications (RCom) and Videocon respectively.
On August 21, the top court directed the DoT to apprise it of spectrum sharing done by telecom companies and how much is the liability of the sharers.
It asked the DoT secretary to file a specific affidavit apprising it about who was using the spectrum from the date of grant of licence and from which date the respective sharing of the spectrum has taken place.
It had asked the DoT what was the amount paid by Reliance Jio for using 23 per cent of Reliance Communication (RCom’s) spectrum.
On August 20, the top court had expressed concern over non-payment of AGR-related dues by telecom companies which are under insolvency saying “without paying for the horse, telcos are taking a ride”.
On August 14, the top court had sought the details of spectrum sharing pact between RCom and Reliance Jio and said as to why the company using the spectrum of the other firm cannot be asked to pay the AGR related dues to the government.
The Centre had earlier told the top court there was a difference of opinion between two of its ministers (DoT and the Ministry of Corporate Affairs) on the issue of sale of the spectrum during insolvency proceedings.
