Justice Arun Mishra would have retired as the 46th Chief Justice of India (CJI) if the Congress-led UPA government had allegedly not opposed his elevation on two occasions prior to 2014. Like his nemesis, Justice Chelameswar, this delay proved fatal to his career, so the judge will retire as the second-seniormost, next to Justice N V Ramanna, who will take over as the 48th CJI after the present CJI Sharad Arvind Bobde retires next year.
Some of Justice Mishra’s virtues may be viewed as vices by judges like Jasti Chelameswar, who had Mishra in mind when with his three colleagues, the judge alleged in January 2018 the then CJI Dipak Misra was allotting sensitive cases in which the government was interested, to benches of his choice. Justice Chelameshwar had Justice Mishra in mind.
Like the judge himself, Justice Mishra’s farewell party is mired in controversy, with an alleged fake WhatsApp doing the rounds that the Supreme Court Bar Association (SCBA) would not give the judge a farewell party due to his acrimonious ways in the court room. But the SCBA president, Dushyant Dave, who fought for his ebullient colleague Prashant Bhushan, who has been convicted for contempt, denied this.
Justice Mishra is a deeply religious man, given to observing the nine-day fast during Navratri. But that is not what makes him controversial. Seen as honest, his views coincide with those of the RSS, maybe unwittingly. While in the Supreme Court where he made it on his third attempt, he was seen as close to the BJP, whose top leaders attended his nephew’s marriage function which he had organised.
They included the likes of the then Rajasthan chief minister Vijayaraje Scindia, Gehlot, the late Arun Jaitley and a galaxy of other BJP luminaries, who informally rubbed shoulders with apex court judges. Justice Mishra’s unabashed admiration of Prime Minister Narendra Modi as “a genius who thinks globally but acts locally” highlighted his propensity to be seen as too close to the ruling dispensation. And his praise of Union law minister Ravi Shankar Prasad for abrogating 1,500 obsolete laws confirmed this.
This is why, a scrutiny of the many sensitive cases allotted to him by the last three CJIs, in which the government was particularly interested, is worth enumerating. These are :
· Six out of eight cases involving Gautam Adani went in the industrialist’s favour, saving him crores of rupees but costing the national exchequer the equivalent amount. One of these was Parsa Kente Collieries Ltd (being a 74 per cent joint venture of Adani Enterprises Ltd) which was allegedly heard out-of-turn during the summer vacation in 2019.
· With the then CJI H L Dattu who was also seen as controversial, the judge dismissed a petition by IPS officer Sanjiv Bhatt who swore on affidavit he was present at an alleged meeting when Narendra Modi who was the then Gujarat chief minister allegedly issued oral orders directing the police not to prevent a backlash against a minority community. The bench observed that Bhatt was in touch with NGOs and rival political parties. Bhatt is now serving a life sentence in jail—but not because of those observations.
· The judge refused to recuse from a five-judge Constitution Bench matter set up to interpret a clause in a land acquisition case involving poor farmers. The five–judge bench, headed by Justice Arun Mishra, upheld his own judgment that land acquisition proceedings will not lapse if the disputed amount is deposited in the treasury and the farmers or disputants refuse to withdraw the amount.
· The judge offered dandavat pranam (prostrations in abject apology) when senior lawyers took a delegation to object to his alleged intemperate remarks and threats of issuing contempt notice in open court during hearings. Such a dandavat pranam is not seen to be in consonance with judicial rectitude.
· The four judges, led by Jasti Chelameswar, were against allotting the petitions alleging suspicions in the death of Judge Loya to a bench headed by Justice Arun Mishra. During the press conference on January 12, 2018, Justice Ranjan Gogoi as he then was, confirmed this. Three days later, Justice Mishra reportedly broke down during the customary morning tea meeting of the apex court judges and asked why he was being targeted.
· Justice Arun Mishra refused to recuse himself from the contempt case against Prashant Bhushan, who alleged that sanction of the Attorney General was not taken. Despite these objections, the three-judge bench led by Justice Arun Mishra held Bhushan guilty of contempt but referred the issues of free speech versus contempt of court to a larger five-judge Constitution Bench to lay down the parameters when free speech borders on contempt.
The point here is, before he demits office on September 2, Justice Arun Mishra seems to have contributed a lot to the jurisprudence of the judiciary’s perhaps cordial relationship with the executive. The judiciary and the executive are the state’s parallel organs which like parallel lines, never meet. If they do, it is calamitous.
There is no doubt that judicial independence is more mythic than rooted in reality because all judges of the Constitutional courts draw their salaries from the Consolidated Fund of India. Not more than 0.08 per cent of the gross domestic product or less than one per cent is spent on the judiciary, which may rise with Justice Mishra’s praise for the government.
A putative high court judge’s name is forwarded by the chief justice of that high court to the governor (actually, the chief minister) so that an Intelligence Bureau report is prepared and sent by the chief justice of the parent high court to the CJI, who consults the four seniormost judges and sends the file to a judge elevated from the same parent high court. The incumbent has to be acceptable to both the executive and the judiciary but sometimes, things may go awry as Justice Markandey Katju alleged when an alleged corrupt judge of the Madras high court was confirmed despite his objections. Manmohan Singh was the Prime Minister and succumbed to DMK pressure.
As they are selected in secrecy and not elected, Supreme Court judges are accountable only to their own conscience --- whether collective or individual. In fact, all these failings of the last successive four CJIs were highlighted by Prashant Bhushan—a case which may create judicial history. But most of Justice Mishra’s judgments veered towards upholding the principle that the executive knows best – which is why he opined that the Prime Minister is a genius --- a statement which Jasti Chelameswar would never have uttered.