In Deciding Constitutionality of Enactments, Justice Arun Mishra Always Deferred to Centre

Two important PILs which he came close to hearing and could well have dismissed, survived, and both have huge stakes for India’s democracy.

This is the fifth article 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 / Part 4

New Delhi: Judges, following the rule of interpretation, presume that the legislature does not exceed its jurisdiction. That is why the burden of establishing that an Act or any of its provisions is not within the competence of the legislature or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires.

If a case of violation of constitutional provision is made out, then the state must justify that the law can still be protected under a saving provision or in terms of the tests of proportionality or reasonableness. On this account, Justice Arun Mishra’s record as a Supreme Court Judge suggests he has never needed much convincing about questions of constitutionality when the Centre takes a view.

In Federation of Obstetrics and Gynecological Societies of India (FOGSI) v Union of India (May 3, 2019), the petitioners challenged the constitutionality of Section 23(1) and 23(2) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PNDT) 1994.  Section 23(1) was challenged because of its ambiguity, and section 23(2) was challenged because it assumes the guilt of the alleged accused even before his/her conviction by a competent court, thus allegedly violating the fundamental right to liberty guaranteed under Article 21 of the Constitution.

The bench presided by Justice Arun Mishra held that misuse of a provision or its possibility of abuse is no ground to declare it unconstitutional. If a provision of law is misused or abused, it is for the legislature to amend, modify or repeal it.

Illustration: Pariplab Chakraborty

Examples of reversed burden of proof in statutes include Sections 29 and 30 of the Protection of Children from Sexual Offences Act (POCSO) in which there is presumption regarding commission and abetment of certain offences under the Act, and presumption of mental state of the accused respectively. In Sections 113-A and 113-B of the Indian Evidence Act, there is presumption regarding abetment of suicide and dowry death, and in Section 114-A there is presumption of absence of the survivor’s consent in the offence of rape. Due to the pervasive nature of these crimes, the legislature has deemed it fit to employ a reversed burden of proof in these cases. The presumption in the proviso to Section 4(3) of the PNDT Act has to be viewed in this light, the bench held.

A skewed sex ratio is likely to lead to greater incidences of violence against women and increase in practices of trafficking, bride-buying etc. The rigorous implementation of the Act is an edifice on which rests the task of saving the girl child. Dilution of the provisions of the Act or its rules would only defeat the purpose of the Act – to prevent female foeticide and relegate the right to life of the girl child under Article 21 to a mere formality, the bench concluded in the case, dismissing the petition.

In Pandurang Ganpati Chaugule v Vishwasrao Patil Murgud Sahakari Bank Limited, the Justice Arun Mishra-led constitution bench dismissed challenges to the applicability of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) to cooperative banks.  The bench held that parliament has legislative competence under Entry 45 of List I of the Seventh Schedule of the constitution to provide additional procedures for recovery under section 13 of the SARFAESI Act with respect to cooperative banks.

In The Great Eastern Shipping Co.Ltd v State of Karnataka, a three-judge bench presided over by Justice Arun Mishra dismissed the challenge of the appellant questioning the competence of the state government to impose a sales tax in respect of goods which are used within the territorial waters of India. Though the vessel was used in the territorial waters, it makes no difference with respect to exigibility of sales tax under the Karnataka Sales Tax Act, the bench held.

In Madras Bar Association v Union of India, Justice Arun Mishra was part of the five-judge constitution bench presided by the then Chief Justice H.L. Dattu.  The unanimous judgment in this case was authored by Justice A.K. Sikri on behalf of the bench. The bench upheld the constitutionality of the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT), under the Companies Act, 2013, in line with the court’s 2010 judgment, also delivered by a constitution bench.  It also partly allowed the petitions by issuing directions to the government to bring about corrections in the Act, and take necessary remedial measures to keep it in consonance with the 2010 judgment.

The one exception

There was, however, one case in which Justice Arun Mishra as part of a Constitution bench, went against a statute, declaring section 13(2) of the Rent Control Act, enacted by the Chhattisgarh legislative assembly in 2011, as null and void. The Act, enacted when the BJP was in power in the state, had secured the president’s assent under Article 200, when the United Progressive Alliance (UPA) government was in power at the Centre.

Section 13(1) provided for appeal by a landlord or tenant against the order of the rent controller to the Rent Control Tribunal.  Section 13(2) provided for appeal against an order of the Rent Control Tribunal directly with the Supreme Court obviating any need to seek a remedy by the appellant before the high court.  A two-judge bench, comprising Justices Deepak Gupta and Surya Kant had already declared the provision unconstitutional in H.S. Yadav v Shakuntala Devi Parakh on October 15, 2019, and restored the jurisdiction of the high court to hear appeals under the Act.

The five-judge constitution bench, presided by Justice Arun Mishra, on December 10 last year, in Rajendra Diwan v Pradeep Kumar Ranibala, expressed its full agreement with the judgment in H.S.Yadav. Besides Justice Arun Mishra, the bench comprised of Justices Indira Banerjee, Vineet Saran, M.R. Shah, and S. Ravindra Bhat. The judgment, authored by Justice Banerjee, held that Section 13(2) of the Rent Control Act is ultra vires the Constitution of India, by reason of lack of legislative competence of the Chhattisgarh state legislature to enact the provision.  The bench held that the president’s assent to the Act cannot cure the absence of legislative competence to enact a particular provision.

Interestingly, the Centre – through attorney general – had maintained before the Supreme  Court that only parliament has the competence to legislate in regard to the Supreme Court, and that Section 13(2) of the RCA, enacted by the state assembly,  is unconstitutional.  Although the question to be decided in H.S. Yadav was similar to this case which has been pending since 2016, for strange reasons, it was not tagged with it.

Four benches of the Supreme Court, of lesser strength than that of the Arun Mishra bench, had earlier expressed grave doubts about the legislative competence of the state assembly to enact Section 13(2).  These peculiar circumstances appear to have convinced Justice Arun Mishra to suspend his belief in the presumption of constitutionality of statutory provisions at least in this case.

Two cases which could not be heard by Justice Arun Mishra

Another case of constitutional significance was listed before a five-judge bench presided by Justice Arun Mishra on March 5 and March 17.  On both the days, the bench could not take up the case, probably because of  lack of time.  It was not listed again.  Earlier, the case was dropped from the cause list of Justice Arun Mishra’s bench for February 25 and 26.  The case – Anoop Baranwal v Union of India – traces its origin to Baranwal’s public interest litigation on the need to insulate the selection of election commissioners from executive domination, filed in 2015.  In 2018, the then chief justice of India, Ranjan Gogoi, referred it to a constitution bench.

Baranwal’s plea is that the current system for appointing members of the Election Commission of India (ECI) is unconstitutional. He relies on Article 324(2) of the constitution, which states as follows: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President”.

As Parliament has not yet made any law to govern the appointment of the CEC and other ECs, the executive has been enjoying exclusive power to make the appointments. Such appointments have often resulted in the incumbents – acting as mere civil servants with loyalty to their political masters – compromising the ECI’s autonomy, so essential to hold free and fair elections, a basic feature of the Constitution. Moreover, there is absolutely no requirement that the CEC or the ECs have to be former civil servants.

The Centre, on the contrary, maintains that the integrity of the past CECs and ECs has been an important factor in ensuring the ECI’s autonomy, and the court’s intervention to set up a collegium, as prayed by the petitioner, to select the CEC and the ECs, would be inconsistent with the principle of separation of powers.

Had the Arun Mishra bench been able to hear and decide this case before his retirement, we know what would have been the outcome. As the issue involves interpretation of Article 324, it was unlikely that Justice Arun Mishra would have delivered a judgment which would have gone against the current ruling dispensation at the Centre. Going by his own judicial philosophy, he could not have endorsed a view that Article 324(2) was not complied with in all the previous appointments of the CEC and the ECs or that till parliament enacts a law in that regard, the Supreme Court’s proposed guidelines for a broad-based collegium for the purpose will hold the field.

Baranwal, who is represented by Prashant Bhushan as counsel, and intervener in this case, Ashwini Kumar Upadhyay, a BJP leader who has also prayed for a collegium comprising the prime minister, leader of the opposition and the chief justice of India, must be thanking their stars that Justice Arun Mishra did not eventually hear this case before his retirement.

Sometimes, democracy stands to gain if a constitutional conundrum is not quickly resolved by the highest court, but is kept pending till an opportune moment, with the questions posed by it remaining wide open. This is one such case.

Ram-Shourie-Bhushan petition

Another example is the petition jointly filed by N. Ram, Arun Shourie and Prashant Bhushan challenging the constitutional validity of Section 2(c)(i) of the Contempt of Courts Act, 1971 dealing with scandalising of the court as an offence, was listed before the bench presided over by Justice Arun Mishra, after having been deleted in the cause list for Justices D.Y. Chandrachud and K.M. Joseph. The petitioners wisely withdrew their petition, considering that Justice Arun Mishra was most likely to dismiss it, in view of his predisposition on the issue, as evident from the vehemence with which he was hearing the contempt matters against Prashant Bhushan.

Another reason for withdrawal could well be also due to his likely reliance on the doctrine of presumption of constitutionality of the Act, to reject any challenge to its provisions, let alone consider a plea for a stay.

Unlike Rajendra Diwan, no previous bench has had the opportunity to express its prima facie views on the constitutionality of section 2 (c) (i) of the Contempt of Courts Act.  Therefore, Justice Arun Mishra’s dismissal of the trio’s petition might have rendered the question a finality, which was best avoided through its withdrawal, and plausible consideration, probably at the level of the high court first.

Not surprisingly, in his judgment on sentencing Bhushan on Monday, Justice Arun Mishra held that hostile criticism of the judges or judiciary is definitely an act of scandalising the court.  What makes criticism hostile is something which he left unsaid, as he believed it is left to the discretion of the judge concerned.  Defamatory publication concerning the judge or institution causes an impediment to justice, he said, without elaborating how.  The case law on contempt of court clearly suggests a line of distinction having been drawn between it and defamation.

Both Baranwal’s petition and the Ram-Shourie-Bhushan petition  may one day see the light of the day, and their non-hearing by Justice Arun Mishra would then likely be deemed as a blessing-in-disguise.