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Friday, September 18, 2020

Justice Arun Mishra’s legacy casts a shadow over country’s highest court at a critical moment

Justice Arun Mishra has many firsts to his credit, though all for the wrong reasons

Written by Rekha Sharma | Updated: September 3, 2020 8:56:48 am
Justice Arun Mishra in his garden (Express photo/Tashi Tobgyal)

Justice Arun Mishra of the Supreme Court retired on Wednesday, leaving behind a trail of controversies. He has many firsts to his credit, though all for the wrong reasons. Justice Mishra appeared to be the preferred choice of at least three Supreme Court Chief Justices in the matter of allocation of cases with political overtones or those that were sensitive otherwise.

It started with the then Chief Justice of India Dipak Misra assigning judge B H Loya’s case to a bench presided over by Justice Mishra, ignoring nine other judges senior to him. Judge Loya was a special CBI judge who was hearing the case of the alleged fake encounter of Sohrabuddin Sheikh and his wife — among others, the case involved the present Home Minister of India. Certain voices, particularly those opposed to the then political dispensation, smelt foul play in his death. A petition was filed in the Supreme Court seeking a probe by an independent agency. CJI Misra’s choice invited sharp reactions and was widely seen as a trigger for the unprecedented press conference by the four senior-most judges of the SC against the CJI. Finding himself in the eye of a storm, Justice Mishra felt compelled to recuse himself from the case. He, however, continued to enjoy the confidence of successive CJIs in sensitive and high-profile cases.

READ | Dealt every case with conscience and conviction, says Justice Mishra

When CJI Ranjan Gogoi was accused of sexual harassment by a court staffer, he constituted a special bench surprisingly with himself as the presiding judge and two other judges handpicked by him — one of them was none other than Justice Mishra. The sitting was held on a court holiday. Departing from the normal practice of the presiding judge passing the order, it was left to Justice Mishra to pass the order. The order contained an advice to the media to show restraint in publishing what he described as wild and scandalous allegations without even a modicum of enquiry.

Justice Mishra came out as a man of all seasons. Though a senior judge, he sat in vacation benches, usually the remit of junior judges.

Early this year, Justice Mishra courted another controversy. A question arose on whether acquisition proceedings initiated under the Land Acquisition Act of 1894 would lapse, if the State had not taken control of the land for five years or if compensation had not been paid to the displaced farmers by depositing the same in court. The issue had first come up in 2014 before a three-judge bench which ruled in favour of the farmers. The issue again cropped up before another three judge-bench, this time headed by Justice Mishra. The bench ignored the earlier verdict, and took a different view, even though judicial discipline demanded referring the matter to a larger bench. Since two coordinate benches of the same court took a different view on the issue, a larger bench of five judges was constituted — lo and behold with Justice Mishra as the presiding judge. Alarmed, the farmers’ association filed an application requesting Justice Mishra to recuse from the case — just as no one can be a judge in his own cause, no judge is expected to preside over a bench in which his own earlier judgment is under review. But Justice Mishra would have none of this. After hearing arguments for five days, he refused to withdraw from the case, ignoring the age-old maxim, “Justice should not only be done but should also be seen to have been done.”

READ | ‘Muted’ at Justice Mishra’s farewell, SC Bar head Dushyant Dave complains to CJI

In an international judicial conference in February, while delivering the vote of thanks, Justice Mishra described the Prime Minister as “a versatile genius” and “an internationally acclaimed visionary”. His remarks were widely condemned. Given that the Supreme Court sits in judgment over the actions, omissions, orders and policies of the executive, of which the PM is the head, such effusive praise tends to create doubts in the mind of the consumer of justice about the judiciary’s impartiality and independence. Justice Mishra had breached the Lakshman Rekha again.

Justice Mishra was also known for his outbursts in court compelling the Bar to protest. In one case, he did not even spare a sitting high court judge. In a dispute pertaining to the Malankara Church, a Kerala High Court judge purportedly issued an order in contravention of the SC’s directions. This enraged Justice Mishra so much that he took the Kerala High Court judge’s name in the open court and reportedly said “It is a very objectionable order. Who is this judge? Tell his name loud. Let everyone know, who is this judge? What kind of judge is he?” Even if the Kerala judge was at fault, he did not deserve to be named and shamed. After all, like Justice Mishra, he too was a constitutional authority. When Alexander asked Porus how he wished to be treated, Porus replied, “treat me as a king would treat another king.” But then perhaps, Justice Mishra had not heard about this legend.

As a parting shot, a bench headed by Justice Mishra has held senior advocate Prashant Bhushan guilty of criminal contempt of court because of two tweets — one about the current CJI riding a motorcycle belonging to a BJP leader and the other criticising the last four CJIs. The bench held that the tweets could shake the confidence of the people in the judiciary. If indeed public confidence in the Court was shaken, it was when its four senior-most judges held an unprecedented press conference stating that democracy was in peril. If public confidence in the Court was shaken, it was when one of its staffers made allegations of sexual harassment against the then CJI, and, without hearing the complainant, Justice Mishra almost gave a clean chit to the accused and gagged the press. If indeed public confidence was shaken, it was when the Court pushed matters pertaining to habeas corpus involving the civil rights and liberties of citizens, in the wake of the abrogation of Article 370, to another unknown day.

Goodbye Justice Mishra. You have sat too long. In the words of Oliver Cromwell, “We are done with you”.

This article first appeared in the print edition on September 3, 2020 under the title ‘Goodbye Justice Mishra’. The writer is a former judge of the Delhi High Court

READ | Justice Arun Mishra retires leaving contested SC legacy

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