This is the second in a five-part series examining the judicial career and pronouncements of Justice Arun Mishra, the Supreme Court judge who retires on September 2. See also: Part 1 | Part 3 | Part 4
New Delhi: Judges are often categorised as having conservative, moderate or liberal philosophies of law and of judicial interpretation. How a judge decides a case with constitutional underpinnings reflects her or his judicial decision-making philosophy as well as ideological leanings, personal attitudes, values, political philosophies or policy preferences. Ideally, judges ought to decide cases divorced from their personal values, but they don’t – they largely decide them in consonance with their own beliefs and values.
The Prashant Bhushan matter shows how the case law on contempt of court could be differently interpreted by conservative and liberal judges or by the same judges differently at different times, depending on their unstated compulsions to decide cases in a particular way.
Some Supreme Court judges are likely to appear more liberal or conservative depending on the nature of the cases before them. A study of a judge’s rulings during her or his tenure, therefore, can guide us to the overall ideological orientation of the court over time.
A conservative approach
Justice Arun Mishra’s conservatism largely influenced his rulings concerning religion. In his 2018 judgment in Sarika v Administrator, Shri Mahakaleshwar Mandir Committee, Ujjain (M.P.) & Others, he held that the government has a duty to maintain the deteriorating ‘lingam’ at the Mahakaleshwar temple in Ujjain. Importantly, Justice Mishra, in this judgment, did not refer to Chief Justice Dipak Misra’s earlier judgment on the restoration of religious places which were destroyed in the 2002 Gujarat riots in which he ruled that the state had no right to spend public funds on their restoration [State of Gujarat v the IRCG]. As Faizan Mustafa pointed out in an article in The Wire, what should concern one is the court’s reasoning, and not the final outcome of the case.
Again, while Justice Arun Mishra cited the court’s 2011 judgment in Prafull Goradia v Union of India wherein the apex court upheld the constitutionality of the Haj subsidy on the grounds that a small amount spent on religions will not be violative of Articles 14 and 15 of the constitution, he ignored its 2012 judgment in Union of India v Rafique Sheikh Bhikan, where the court directed the government to phase out the Haj subsidy over a period of 10 years.
On Tuesday, the bench comprising Justices Arun Mishra, B.R.Gavai and Krishna Murari issued fresh directions to preserve the lingam and for its upkeep. The bench has also directed the Centre to contribute Rs.41.30 lakh for the purpose as early as possible. The court is likely to monitor the case further, and has sought detailed project reports for repair and maintenance works at the temple. For preservation and maintenance of Chandranageshwar temple, the bench has directed submission of a comprehensive plan and its implementation. The bench expressed its concerns that of late, “unfortunately the performance of necessary rituals is the most neglected aspect in the temples, and new Poojaris do not understand them; the same should not be the state of affairs. There is no scope for commercialisation. The myriad religious rituals and ceremonies are to be performed regularly.” This is perhaps the first time that the Court has found it appropriate to micro-manage the functions and daily rituals of a Hindu temple.
More recently, in Nishikant Dubey v Union of India, Justice Arun Mishra held that total restriction on worship because of COVID-19 by the public at the Baidhyanath Jyotirlinga temple at Deoghar during the month of Shravan is unreasonable. “We earnestly request them (the state government) to find out a possibility of limited entry of general public in temples, churches and mosques in the state,” the bench comprising Justices Mishra, B.R. Gavai and Krishna Murari said while observing that the state is duty-bound to enforce social distancing norms. Witnessing temple rituals through live streaming cannot be a substitute for a physical visit to places of worship, the bench observed and asked, “when other things are functioning (during the unlock period) why can’t states manage temples”.
The comparison of temples with other secular activities and the drawing of an inference of discrimination against places of worship by the Justice Arun Mishra bench is reminiscent of what one of the dissenting conservative judges of the US Supreme Court held in a recent case, and which drew sharp criticism from observers.
Unlike secular activities, religious events are distinguishable as large gatherings in which people remain in close proximity for extended periods, thus increasing the threat of spread of coronavirus. The Mishra bench, as its counterparts among the conservative judges of the US Supreme Court, did not understand such policy concerns of the state.
Ironically, Justice Arun Mishra excused himself from farewell parties on the eve of his retirement citing the ongoing pandemic, but when it came to permitting public gatherings at religious functions, he believed social distancing norms could provide the remedy.
The Rehana Fathima case
On August 7, while dismissing the anticipatory bail plea of an activist from Kerala, Rehana Fathima, Justice Arun Mishra, who presided the bench comprising himself, and Justices B.R.Gavai and Krishna Murari, asked her counsel, senior advocate Gopal Shankaranarayanan, why he brought this case before him at the fag end of his tenure.
Fathima is fighting allegations of child pornography following her uploading on YouTube a video clip of her two minor children painting on her body. She was before the bench on an appeal against the Kerala high court’s decision to deny her anticipatory bail in the case.
A sense of embarrassment of having to hear the facts of this case, and the petitioner’s contentions, merely because she approached the court at the fag end of his judicial career was discernible in Justice Mishra’s initial response. The inference was that it would have been all right if a similar case unfolded itself before him early in his judicial career. Justice Mishra might have, in the alternative, wanted to convey that even hearing this matter at any point would mean a blot in his otherwise “illustrious tenure” as judge.
In either sense, Justice Mishra’s revulsion over the facts of the case clearly underlined his judicial philosophy: conservatism and an inability to separate his personal temperament and world view from that of his responsibility to apply the law to the facts of the case before him. In other words, Justice Mishra is clearly entitled to his ‘moral’ and ‘ethical’ views in a given matter, but to do justice in the case before him, many would have expected him to consider the merits of her plea for anticipatory bail, rather than let his philosophical attributes influence his judicial mind.
What the court missed
Ironically, as a result, Justice Mishra did not enquire into whether she was entitled to anticipatory bail in the case. He did not even ask the counsel for the state government – who was present during the hearing – whether her custodial interrogation was required by the police to unravel the case. Not surprisingly, the state’s counsel chose to be silent, as Justice Mishra was arguing on their behalf.
“We find no ground to interfere with the impugned order(s) passed by the high court. The Special Leave Petitions are, accordingly, dismissed. Pending interlocutory application(s), if any, is/are disposed of,” the bench said in its brief order.
The order clearly stemmed from non-appreciation of the error in the Kerala high court’s order which failed to see whether Section 13 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) was attracted in the case, as alleged.
The essential ingredient to be satisfied under this provision is the ‘indecent or the obscene representation of the child’. The nudity of the mother cannot be an indecent representation of the child under this provision. The high court interpreted it to include in its ambit the act of involving a child through any medium for distribution of pornographic material. The high court’s conclusion is clearly contrary to its own appreciation of the children’s painting talents while watching the video.
Like the high court, the Justice Arun Mishra-led bench in the Supreme Court also erroneously went into the merits of the case, rather than answering whether she satisfied the criteria for the grant of anticipatory bail. Anticipatory bail could be granted with conditions to prevent the accused from repeating the offence she is alleged to have committed.
More significant, the allegedly offensive video has not been taken down by YouTube itself, despite the outrage expressed against its supposed obscenity. Besides, the police has not invoked Section 292 IPC against her, although the provision deals with obscenity.
What is difficult to understand is that Justice Mishra’s bench has endorsed the high court’s reasoning that she would not have attracted the penal provisions if she had experimented with her children within the four corners of her home, and refrained from uploading it on the social media. If her conduct does not constitute an offence, if committed within the four corners of her home, how could it become an offence if uploaded on social media, especially if there is no pornographic material sought to be disseminated through the children?
Clearly, the denial of anticipatory bail to Fathima by both the high court and the Supreme Court sweeps many relevant issues under the carpet, which will hopefully be clarified during the trial.
In Sushila Aggarwal and others v State (NCT of Delhi) and another, a constitution bench, presided by Justice Mishra, delivered a detailed judgment on the question of anticipatory bail on January 29. The bench agreed in this case that Section 438 CrPC has an intrinsic link with Article 21 in as much as it seeks to balance the state’s power and responsibility to investigate offence, with its duty to protect individual rights and liberties of citizens. Article 21 raises the presumption of innocence in favour of the accused; consequently, this has to be at the centre of every consideration of penal statutes and their implementation, the bench concurred. Section 438 CrPC, being part of procedure established by law, is to be construed in a fair, just and reasonable manner, the bench suggested citing precedents supporting such a view.
The bench held in this case that whether to grant anticipatory bail is a matter of discretion of the judge, but if granted, it should be in favour of the accused without any restriction as to the time of its validity, unless there are any peculiar features necessitating the court to limit it.
More important, an order of anticipatory bail, the bench held, should be confined to the specific offence or incident, for which apprehension of arrest is sought; it cannot operate in respect of a future incident that involves commission of an offence. Therefore, Justice Mishra’s reasoning that denial of bail to Fathima is justified because that will ensure she won’t repeat the alleged offence again is bizarre.
The Supreme Court held in Sushila Aggarwal that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses) likelihood of fleeing justice (such as leaving the country), etc.
Neither the high court nor the Supreme Court cared to explain how Fathima did not satisfy the court on any of these grounds. Instead, Justice Mishra told her counsel that the high court had gone into the merits of the case – which it ought not to have at the pre-trial stage, so as not to influence the trial court proceedings.
Therefore, Justice Mishra’s neglect of the judgment in Sushila Aggarwal, delivered by a constitution bench presided by him, to deny anticipatory bail to Fathima is of a piece with general lack of judicial discipline, so characteristic of his judicial interventions.
Vineeta Sharma v Rakesh Sharma
The Justice Arun Mishra-led bench’s judgment on August 11 interpreting the 2005 amendment to Hindu Succession Act, 1956 has come in for universal acclaim for its bold decision to give daughters equal rights to inheritance and make them coparceners, on par with sons in a family.
Even in this widely recognised pro-women judgment, as legal scholar Dr Saumya Uma told The Wire, Justice Arun Mishra could not completely free himself from the oft-repeated stereotypes, characteristic of a distant era in the past, and of disguised patriarchy: “A son is a son until he gets a wife. A daughter is a daughter throughout her life.” Does the judgment pit the daughter against the daughter-in-law? This is hardly a template for gender equality, those who otherwise hail the judgment are likely to say.