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'.

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.