As Justice Arun Mishra's Term Ends, There Are Key Judgments Still Pending

Two cases in which his bench reserved judgments, and two other cases which were left incomplete deserve to be noticed.

New Delhi: On Tuesday, the Arun Mishra bench of the Supreme Court referred the 11-year old contempt case against  Prashant Bhushan for consideration by an “appropriate bench” on September 10, because of inadequate time available to it to consider the larger issues which it proposed. The same day, the bench also reserved its verdict on the sentence to be awarded to Bhushan following his conviction for contempt in the tweets case, and after failing to secure the apology it wanted from him.

In this article, The Wire looks at some of the pending cases, in which Arun Mishra, as head of a bench, either reserved verdict, or left the proceedings incomplete.

Yet-to-be released report by Justice Patnaik

The first is In Re: Matter of Great Public Importance touching upon the Independence of Judiciary.  In this case, a bench comprising Justices Arun Mishra, Rohinton Nariman and Deepak Gupta began hearing the matter on April 23 last year, following certain claims by advocate, Utsav Bains.  Bains claimed that the allegations of sexual harassment made by a former junior officer of the Supreme Court against the then CJI, Ranjan Gogoi, were fabricated and motivated by a larger conspiracy to undermine the independence of the judiciary by corporate persons and corrupt political leaders.

On April 24 last year, Bains appeared in-person before the bench and submitted an affidavit in a sealed cover.  On April 25 last year, the bench appointed a retired judge of the court, Justice A.K. Patnaik to conduct an inquiry into the alleged conspiracy.

Gogoi, who is at present a nominated member of Rajya Sabha, had called a special hearing on a Saturday denying the woman’s allegations of harassment. Justices Arun Mishra and Sanjiv Khanna sat with him on the bench.

The order issued at the end of the hearing was signed only by Justices Arun Mishra and Sanjiv Khanna.  The bench declined to pass a judicial order because the case concerned a sitting judge of the court, but “left it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary”.   “We would, therefore, at this juncture leave it to the media to take off such material which is undesirable”, the non-judicial order read, advice which the media mostly ignored.

Despite concerns expressed by counsel that the Arun Mishra bench might overlap with that of the in-house inquiry looking into the sexual harassment allegations and influence its findings, the bench insisted on hearing the matter on the ground that its concerns were separate.

The employee concerned withdrew from the in-house inquiry alleging it was biased.  Although the three-member committee comprising the present CJI, S.A. Bobde, and Justices Indira Banerjee and Indu Malhotra had given Gogoi a clean chit, the Supreme Court subsequently reinstated the former employee without explanation.

The Arun Mishra bench’s April 25, 2019 order clearly directs the registry to list the matter after the inquiry report of Justice Patnaik (Retd.) is received.  Although Justice Patnaik submitted his report to the court last October, the registry has not yet listed the matter for hearing.  Meanwhile, one of the judges who sat on the bench, Justice Deepak Gupta has retired. Therefore, the CJI, in his administrative capacity, has to reconstitute the bench so as to hear the matter again.  With Justice Arun Mishra retiring on September 2, the matter may not be listed again, leaving the Patnaik report permanently under wraps.  Is not the registry guilty of not listing the matter as directed by Justice Arun Mishra?

In cold storage

In contrast to the speed with which the Arun Mishra bench proceeded against Bhushan in the 11-year old contempt case, and in the tweets case, the bench came close to testing its contempt powers in another case against Bhushan in 2019.  That was when Bhushan alleged on February 1 last year in a tweet that Attorney General K.K. Venugopal might have misled the Supreme Court about the minutes of the selection committee meeting held to choose a successor to the outgoing CBI Director, Alok Verma.  On February 6, 2019, the court issued notice to Bhushan, on a complaint from Venugopal himself.

Venugopal had submitted that the committee agreed on the appointment of M. Nageswara Rao as the CBI’s interim director. Bhushan suggested that the minutes of the meeting might have been fabricated, as the leader of the opposition, Mallikarjun Kharge, told him that no such discussion took place in the meeting.  The committee comprised of Prime Minister Narendra Modi, Kharge and Justice A.K. Sikri of the Supreme Court, as the nominee of the then CJI, Ranjan Gogoi. Justice Sikri has since retired.

Justice Arun Mishra. Photo: PTI

When Venugopal confronted Bhushan with the actual minutes of the meeting, and questioned his tweet as having cast aspersions on his integrity, Bhushan admitted it was a genuine mistake.  Venugopal accepted Bhushan’s admission and requested the bench not to punish him for this.

But the bench kept the case pending for deciding two other issues which the case led to. First, Bhushan had sought the recusal of Justice Arun Mishra from hearing the case. When Justice Mishra rejected his plea and sought his unconditional apology for making it, Bhushan refused to yield.  Justice Arun Mishra then decided to continue the hearing on the recusal plea.  The bench in that case also sought clarity on whether counsel can go public on a pending case before the court. The case was last listed on April 4, 2019, when it had to be adjourned to July, because arguing counsel were busy in the constitution bench.  The matter was never listed again.

Will matter go Adani groups way again?

The third case to watch is All India Power Engineers Federation v Jaipur Vidyut Vitaran Nigam Ltd. and Others.

The appellant in this case represents the body of all power engineers working in power utilities under the Central and state governments.  The federation claims that it is looking after the interest of consumers of power in the country. The Supreme Court itself had opined on December 8, 2016 that it could represent the cause of consumers, as it claims.  Adani Power Rajasthan Limited (APRL), however, denies this and questions the federation’s locus standi to intervene in its dispute with distribution companies (discoms). The three discoms operating in Ajmer, Jodhpur and Jaipur are public sector companies owned by the Rajasthan government.

The federation is challenging the dismissal by the Appellate Tribunal for  Electricity (APTEL) with costs of its application to intervene in the dispute.

The APRL is a power generating company, which developed a coal-based thermal power plant at Kawai, Baran district, Rajasthan.  APRL and Rajasthan discoms executed a power purchase agreement (PPA) for supply of aggregate contracted capacity of 1200 MW in 2010.

In 2013, APRL sought suitable compensation 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.

According to the Federation, as reported by Newsclick, 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 Rajasthan Electricity Regulatory Commission (RERC) allowed the claims of APRL, but restricted the relief from the date of commercial operation to the date when it entered into a fuel supply agreement and denied the claims of carrying cost.  Both the discoms and APRL challenged the RERC’s order on different grounds before the APTEL, which directed the discoms to pay the amount of Change in Law compensation, along with applicable carrying cost .

Also Read: Can Force Majeure Be Invoked as a Statutory Defence Regardless of Contractual Terms?

According to the federation, the bid document issued by the procurer did not prescribe any specific fuel to be used by the successful bidder in the generation and supply of electricity. Therefore, the successful bidder was entitled to decide both on the nature of the fuel – whether coal or gas – and also whether the fuel should be procured from domestic suppliers or imported.

The federation also claimed that the RERC’s order was arbitrary and patently contrary to the decision of the Supreme Court in Energy Watchdog’s case, and also adversely affected the interests of consumers and public at large.  According to the federation, APRL has claimed an exorbitant amount of more than Rs. 5000 crores from Rajasthan discoms, which eventually would affect consumers in the form of tariffs.

APRL opposed the federation’s attempt to intervene in the matter, because it was not a party before the RERC, where the APRL had sought relief based on contractual provisions. APRL also described the federation as an outsider to the PPA, and had no role to play in the adjudication of the dispute.   APTEL ruled in favour of APRL, and dismissed the federation’s plea to intervene in the bilateral dispute in May 2019, and imposed a fine of Rs. 50,000 on it, on the ground that it was not a public interest litigation.  APTEL also accused the federation of suppressing the fact that the Supreme Court had in February 2019 rejected its intervention application on the ground that it had already ruled on it in October 2018.

On the main challenge, since APRL has already incurred costs in procuring alternate coal and supplying power to the discoms using such coal, equity required that the compensation payments for the period up to the date of this order be made expeditiously, APTEL had ruled in September 2019.

This decision is also under challenge before the Arun Mishra bench, which has reserved its judgment. A News Click report reveals that Justice Arun Mishra’s rulings have favoured the Adani group in seven different cases earlier.

This time, however, if Arun Mishra bench favours the Adani group, it has to overrule a 2017 decision by a two-judge bench in the Energy Watchdog case referred to earlier. In that case, it had been 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. What remains to be seen is whether Justice Arun Mishra bench offers convincing reasons, if at all this ruling is overruled by it.

Will trial be vitiated if complainant becomes investigating officer?

In Mohan Lal v State of Punjab (2018), a three-judge bench of the Supreme Court had acquitted the accused because investigation in that case was conducted by the police officer who himself was the complainant, thus vitiating the trial held subsequently.

The bench, comprising the then CJI, Ranjan Gogoi, and Justices R. Banumathi and Navin Sinha (who authored it) observed:

“Fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done,   but must appear to be done also. Any possibility of bias or a predetermined conclusion has to   be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.”

The accused in that case was convicted under Narcotic Drugs and Psychotropic Substances Act, 1985, sentencing him to rigorous imprisonment for 10 years and a fine one lakh rupees, with a default stipulation.

A two-judge bench, comprising Justices Uday Umesh Lalit and M.R. Shah, disagreed with this ruling, and referred it for reconsideration by a larger bench on January 17 last year. On September 12 last year, a three-judge bench comprising Justices N.V.Ramana, Mohan M. Shantanagoudar and Ajay Rastogi, in turn, referred it for consideration by a five-judge bench.

A five-judge bench presided by Justice Arun Mishra, and comprising Justices Indira Banerjee, Vineet Saran, M.R. Shah and S.Ravindra Bhat, concluded hearing and reserved its judgment in the case on November 5 last year.

The ruling is expected to clear the confusion in deciding what constitutes bias and fair trial in a given case.

Note: This article was first published at 10:20 pm on August 26 and was republished at 11:20 am on August 27 for home page placement reasons.