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”.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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
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