Should Supreme Court judges be predictable? Does the predictability of a judge suggest that she or he has already made up their mind about the outcome of a case, and therefore, howsoever persuasive counsel is, their opinion is unlikely to change?
In law, predictability is considered very important. People need to know the rules and they cannot plan their lives unless they know the law – and how it operates – in advance.
Despite differences in temperament and personal attributes, it is reasonable to predict that a judge will not compromise her or his or her oath of office, and therefore, can be expected to protect constitutional values, despite challenges from any quarter. But judging actions and laws can also leave room for reasonable doubt, and the best judges are those who grapple with the facts and the law fairly and not predictably, and this attribute will inevitably lead them in unexpected directions.
Justice Arun Mishra might have surprised many when he praised Narendra Modi as “an internationally acclaimed visionary and a versatile genius who thinks globally and acts locally” in February this year. The bar was upset by his effusiveness and said so. But for those who have been following his judgments, his personal encomium for the prime minister expressed from a public platform in Modi’s presence was hardly a surprise, because as the biggest litigant before the court, the Centre always stood to gain in cases listed before him. When the very embodiment of that biggest litigant was physically present before him, how could he have withheld his admiration?
How then will history place Justice Arun Mishra in the scale of predictability? There are three broad, but qualified, inferences that one can make from his judgments.
1. He always ruled in favour of the state when it was an appellant in a case before the Supreme Court.
In July 2020, a Justice Arun Mishra-led bench set aside a Delhi high court order asking the National Investigation Agency to explain the circumstances in which it had effected the “hasty transfer” of Gautam Navlakha from Tihar Jail in Delhi to Mumbai despite the pendency of Navlakha’s special bail plea on health grounds.
As The Wire reported,
Navlakha was arrested in April this year and charged under the draconian Unlawful Activities (Prevention) Act in the Bhima Koregaon case…
On May 27, the high court asked for all the relevant documentation used to transfer Navlakha away from Delhi to jail in Mumbai. Justice Anup Bhambhani had then expressed his reservation about the “inexplicable, frantic hurry” the NIA displayed in shifting Navlakha to Mumbai from Delhi, while the proceedings in the court on his interim bail petition were still pending. Navlakha was effectively removed from the high court’s jurisdiction by the NIA.
Instead of following the Delhi high court order, the NIA moved Supreme Court, where the Justice Arun Mishra bench first stayed the HC proceedings and then overturned its order, and also expunged Justice Bhambhani’s remarks against the NIA.
In Union of India v State of Maharashtra in 2018, the Centre sought a review of a Supreme Court order – delivered by a two-judge bench earlier in this year – issuing guidelines to deal with the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
The guidelines laid down by Justices Adarsh Kumar Goel and Uday Umesh Lalit in Subhash Kashinath Mahajan v State of Maharashtra on March 20, 2018 had become controversial with SC and ST organisations vociferously protesting what they saw as a dilution of the Act’s denial of anticipatory bail to the accused. After Justice Goel retired, a three-judge bench comprising Justices Arun Mishra, M.R.Shah and B.R. Gavai was constituted to hear the review petition.
In their review judgment, the Justice Arun Mishra bench said public servants already have a remedy in false cases under Section 482 Cr.P.C., and can approach high courts for quashing such FIRs.
The guidelines laid down by the Goel-Lalit bench were recalled. Those guidelines had noted that individuals accused under the Act could not be arrested without the written permission of the senior superintendent of police of the district and that a preliminary enquiry would be required for registering a case under the Act.
The Arun Mishra bench upheld the amendments made by parliament in the Act to nullify the guidelines issued by Goel-Lalit bench. The amendment ruled out any provision for anticipatory bail for an accused under the Act.
In Union of India v Mool Chand Khairati Ram Trust, (decided on July 9, 2018), a bench of Justices Arun Mishra and Lalit allowed the Centre’s appeal against the Delhi high court verdict which had quashed its directions to hospitals to strictly follow the policy of providing free treatment to 25% outpatient department patients and 10% of in-patient department patients in terms and conditions of the allotment of the land to them at concessional rates.
The high court had quashed the Centre’s directions on the ground of absence of legislative backing. The Supreme Court held that the government was competent to enforce the contractual and statutory liability of the hospitals concerned under its executive powers. There was no need for a law, because no new restriction on the right to pursue a profession has been imposed under Article 19(6) of the Constitution.
In Union of India v Jai Kishun Singh, decided by a bench of Justices Vikramajit Sen and Arun Mishra (and authored by Justice Arun Mishra) on September 10, 2014, the Patna high court had set aside the Centre’s order cancelling the pension payable to a freedom fighter. The Centre claimed that the respondent did not participate in the freedom struggle as he was a child of seven to eight years in 1942, and therefore, he was not eligible to receive it. Participation in the freedom struggle at such a young age was highly improbable, and therefore cancellation of pension to the respondent was not unwarranted, he ruled on behalf of the bench.
In State of Madhya Pradesh v Sabal Singh (dead) by LRS and Others, a bench of Justices Arun Mishra and M.R. Shah, on October 14, 2019, decided a land dispute in favour of the state government. In this case, the respondents had filed a suit for declaration of Bhumiswami rights and permanent injunction restraining the state from interfering in their possession of land. The state, however, treated the respondent as encroacher of agricultural land, and threatened him with dispossession. The Supreme Court held that once the trial court and the first appellate court recorded a concurrent finding of fact that the land was not under personal cultivation, it was not open to the high court to interfere with the findings of fact, which was based on the proper appreciation of evidence on record. Even the plaintiff/ respondent was unable to state whether there was any crop in 2007 before zamindari abolition, the Supreme Court reasoned.
In State through Narcotics Control Bureau v Yusuf and others, Justice Arun Mishra said the high court’s acquittal of respondents found guilty by the trial court under the Narcotic Drugs and Psychotropic Substances Act, 1985 was unsustainable. He, therefore, remitted the case to the high court to decide the appeal afresh in accordance with law duly considering the reasoning employed by the trial court and the entire evidence.
2. When the state was a respondent, he didn’t mechanically favour the state, but some of the exceptions when he ruled against the state, were controversial.
In Chebrolu Leela Prasad Rao and Others v State of Andhra Pradesh, in which he presided over a constitution bench of five judges, Justice Mishra quashed, in a unanimous judgment, 100% reservation to Scheduled Tribe candidates out of whom 33.3% was reserved for women for the post of teachers in the schools in the scheduled areas in Andhra Pradesh. The judgment, in the words of sociologist Nandini Sundar, is perilously close to dismantling the entire edifice of the Fifth Schedule to the Constitution. As non-adivasis from other districts flood Scheduled areas, leading to clear demographic change, the clamour to do away with the protective provisions of the Fifth Schedule is only getting louder, she has observed.
The Andhra Pradesh G.O. of 2000 was aimed at promoting education in tribal areas and addressing the problem of rampant teacher absenteeism. As anyone even slightly acquainted with the problems of tribal areas knows, non-tribal teachers are often reluctant to travel to or live in remote adivasi hamlets. Another big problem is language. Many non-tribals, including lower government officials, have lived for years in tribal areas without feeling the need to learn tribal languages. At the primary level, mutual incomprehension between non-tribal teachers and tribal students hampers the basic education of children, she adds.
As Sundar makes clear, it is as though the Arun Mishra bench didn’t understand the history and rationale of Fifth Schedule to the constitution. It is one judgment which needs to be revisited by a larger bench. The earlier, the better.
In Devinder Singh v State of Punjab through CBI, Justice Arun Mishra, while sitting with his senior judge, Justice V.Gopala Gowda, ruled in favour of the appellant. In this case, the appellants were police officers accused of killing four persons in a fake encounter in 1993. The appellants had obtained sanction from the state government, but not from the Centre as required under the Punjab Disturbed Areas Act, 1983. The high court had held that since it was a fake encounter, the same could not be said to be an act in discharge of official duties, and hence sanction was not required. In his judgment, Justice Arun Mishra, directed the trial court to proceed on the basis of the prosecution version, and re-decide the question of sanction afresh in the light of evidence emerging that there was a reasonable nexus of the incident with discharge of official duty.
In Amal Kumar Jha v State of Chhattisgarh , which Justice Arun Mishra decided while sitting with Justice Gopal Gowda as the presiding Judge on April 26, 2016, the Supreme Court allowed the appeal of a government doctor accused of medical negligence resulting in the death of a patient by holding he could not have been prosecuted without sanction in accordance with law by the competent authority. The doctor’s conduct complained of was intrinsically connected with discharge of his official duty, the bench held.
In Selvaraj v State of Karnataka, Justice Arun Mishra ruled in favour of the appellant by holding that the high court erred in reversing his acquittal under the Prevention of Corruption Act.
In Kala v State through Inspector of Police, he acquitted the appellant giving her the benefit of doubt as the chain of circumstances was not complete.
In Wildlife First v Ministry of Forest and Environment, the constitutional validity of the Forest Rights Act, 2006 is under challenge and the case has been pending since 2008. In 2014, the petitioners – mainly conservationists – filed an interlocutory application, requesting the court to order states to evict illegal forest dwellers.
On February 13, 2019, the bench of Justices Arun Mishra, Navin Sinha and Indira Banerjee, ordered states to evict all individuals who had their claims rejected under the Act by July 24, 2019. The bench directed the Forest Survey of India to conduct a satellite survey and place on record encroachment positions before and after evictions. It also directed the chief secretaries of various states to submit affidavits explaining why they had failed to evict individuals, who had had their claims rejected.
Following an outcry by affected tribals and other stakeholders, and the Centre, which intervened on their behalf, the bench of Justices Arun Mishra, Navin Sinha and M.R.Shah, on February 28, 2019 kept its February 13, 2019 order on hold so far as eviction is concerned.
This pending case is likely to be taken up by another bench after Justice Arun Mishra retires.
Savelife Foundation v Union of India was a public interest litigation, and the Centre did not adopt an adversarial stand in the proceedings. As the plea was for the development of a supportive legal framework to protect bystanders and passers-by who render help to victims of road accidents, the court constituted a committee consisting of eight members to submit suggestions. The Centre prayed that its guidelines notified on May 12, 2015 might be declared to be enforceable by Supreme Court so that it is binding on all the States and union territories until the Centre enacts a law to this effect.
In Bikram Chatterji v Union of India, (23.7.2019), the Justice Arun Mishra bench which included Justice Lalit, addressed the question of whether builders and promoters can be permitted to usurp and divert the money of home buyers and whether the latter can have no remedy.
Applying the public trust doctrine, the bench held that it imposes on the state and its functionaries a mandate to take affirmative action for effective management, and the citizens are empowered to question its effectiveness. The state government, the bench held, is bound to ensure that builders act in accordance with the objective behind the acquisition of land and the conditions on which allotment had been made. The public authorities, the bench held, are duty-bound to observe that the leased property is not frittered away along with the money of the home buyers. The bench appointed the National Buildings Construction Corporation (NBCC) to complete the various unfinished projects of Amrapalli Group of companies, whose registration under Real Estate Regulatory Authority stood cancelled. The court directed the Centre and the state governments to ensure that housing projects are completed in time-bound manner as contemplated under RERA and home buyers are not defrauded.
3. Apart from the few exceptions above, Justice Arun Mishra mostly ruled in favour of the state when the latter was a respondent.
In Anand Teltumbde v The State of Maharashtra, a bench comprising him and Justice M.R. Shah, rejected anticipatory bail pleas of Bhima Koregaon case accused Gautam Navlakha and Anand Teltumbde on the ground that Section 43D(4) of the Unlawful Activities (Prevention) Act, 1967, excludes the operation of Section 438 of the Cr.P.C. The bench opined that it could not be said that no prima facie case was made out and directed them to surrender within three weeks from March 16.
Chapters 4 and 6 of UAPA deal specifically with “terrorist acts” and “membership with the terrorist organisation” respectively and Section 43D(5) of the UAPA – dealing with a prima facie case – kicks in only if the offences alleged prima facie fall under these chapters. There is sufficient reason to believe that the Arun Mishra bench by avoiding any discussion of the facts of the case in detail – by citing the petitioners’ request as an excuse – relied on the respondents’ plea mechanically and dismissed the plea for anticipatory bail perfunctorily.
In Christian Medical College, Vellore Association v Union of India, a bench of Justices Arun Mishra, Vineet Saran and M.R. Shah dismissed the challenge to National Eligibility-cum-Entrance Test (NEET) for admission to MBBS course in each academic year. The bench held in this case that the rights of religious and linguistic minorities under Article 30 are not in conflict with other parts of the constitution, and the balancing of rights is a constitutional intendment in the national and more enormous public interest. Reasonable regulatory measures can be provided without violating rights available under Article 30 of the Constitution to administer an institution, the bench ruled. The regulatory measures by prescribing NEET is to bring the education within the realm of charity which character it has lost, the bench reasoned.
But doubts persist over whether standardised common tests may discriminate against the poor and the under-privileged, and the bench has apparently ignored this dimension of the problem.
In most land acquisition cases in which there were disputes over compensation, Justice Arun Mishra was inclined to dismiss the appeals filed by private individuals in favour of the respondent-state. Where the state and its instrumentalities were appellants before him, he either allowed the appeals or partly decided them in their favour.
In the latest case of Sayantan Biswas & Others v National Testing Agency (NTA) and others, which the Arun Mishra-led bench heard on August 17, the bench refused to postpone the NEET and JEE (Main) examinations, simply relying on the submissions of solicitor general Tushar Mehta. “In our opinion, though there is pandemic situation, but ultimately life has to go and the career of the students cannot be put on peril for long and full academic year cannot be wasted”, the bench reasoned . No wonder, the order was disappointing as it was issued merely on the basis of the official claims, without examining the facts on the ground.