Justice Arun Mishra to Head NHRC: ‘Ignoble’ Record Haunts Chair

As illustrated in this op-ed, Justice Mishra’s judgments have often revealed a lack of empathy for the oppressed.

Image of Justice Arun Mishra used for representational purposes.

(Photo Courtesy: Erum Gour/The Quint)

A common response to the appointment of Justice Arun Mishra as the Chairperson of the National Human Rights Commission (NHRC) has been that the government has ‘favoured’ a judge who has consistently delivered favourable verdicts for them. From his ‘versatile genius’ comment to his readiness to deliver exactly the kind of verdicts that the government wanted in a wide variety of cases, one can find sufficient evidence to make this claim.

Such a move is not even unique to this government, or even to past Union Governments. State governments have indulged in it as well.

The carrot of post-tenure appointment is sufficiently widespread, such that econometric studies have even been able to pinpoint it using Supreme Court case data. Some of this is even encoded into law, such as the Protection of Human Rights Act, 1993, which mandates that the chairperson has to be the Chief Justice of India or a judge of the Supreme Court.

However, criticism of this move should not stop here. The larger, more egregious fault with the appointment of Justice Arun Mishra, is the way it seems to ‘reward’ his record — which, in my view, is best characterised as a jurisprudence of cruelty. Three cases will illustrate what I am talking about.

Eviction of Adivasis & Traditional Forest Dwellers From Their lands

In February 2019, hearing a PIL about conservation of forests, Justice Mishra directed states to immediately evict all adivasis and forest-dwellers from forest areas, if they were not been able to ‘prove’ that they have rights to the forest that they were living in. This potentially affected millions of adivasis and forest-dwellers across the country, stymied as they were by state governments, which had made it hard for them to prove their claims to forest lands, through widely differing evidentiary requirements. None of this was gone into, as the SC passed its order directing state governments to complete the evictions in six months.

This led to a nationwide agitation among adivasis, with the backlash being so powerful that the Union Government, which had refused to defend adivasi rights in this case, was forced to go back to court and ask for a stay on the implementation of the order.

Justice Mishra’s bench agreed, and so far, no mass evictions have taken place, but that was not the only time that his callousness towards adivasis would come to the fore.

Reservation for Adivasi Teachers in Adivasi Schools

The Andhra and Telangana governments have long had a scheme which has sought to appoint only adivasi teachers to teach in schools located in adivasi areas. The purpose of this policy was to ensure that adivasi children were educated in a culturally appropriate context and in a language they are comfortable. The policy was even upheld by the Andhra Pradesh High Court (as it then was) in almost exactly these terms.

This, however, was unacceptable to Justice Mishra who struck it down as being a “100 percent reservation” in favour of adivasis.

Relying on the Supreme Court’s Indra Sawhney judgment (which only related to OBCs) Justice Mishra held that this “100 percent reservation” was simply unacceptable, capping it at 50 percent, but mercifully not upsetting those who had already benefited from the reservation. There is almost no discussion in the judgment about the objectives of the policy but rather references to uncharitable stereotypes of adivasis and how they are part of a “primitive culture”.

Both the Telangana and the Andhra Pradesh Governments have filed review petitions against this judgment.

The Land Acquisition case

A settled interpretation, given by a three-judge bench — to the 2013 land acquisition law which favoured those whose lands lay in limbo over a stalled acquisition process — was overturned almost single-handedly by Justice Mishra. Even though he was sitting on a two-judge bench which is required to follow it, he refused to, calling the interpretation ‘incorrect’ (for no obvious reason except that he disagreed with it) — and finding himself on larger and larger benches till he overturned the settled position of law.

This new interpretation favoured the government and land acquirers — in effect, giving the government as long as it wanted to give compensation to land losers, and to take possession of the land, years and years after it had been legally ‘acquired’.

A beneficial provision of the law, expressly introduced to ensure that those whose lands had been acquired did not suffer uncertainty endlessly, was turned inside out to ensure the government could benefit at the cost of the land losers.

Appointing a ‘Dubious’ Figure as Head of Human Rights Commission is ‘Black Comedy’

What’s common to these three cases is the absolute lack of any empathy that Justice Mishra has shown towards the large masses of people affected by his judgments. The law, in his hands, is a blunt weapon to be swung in favour of the government and the privileged. The real world concerns of Adivasis, Dalits, Bahujans, small farmers, et al could simply be brushed aside, with a pretence of legal reasoning that inevitably favoured the powerful. Even when presented with the real world impact of his judicial interpretations, it seemed to have no effect on Justice Mishra, and rarely found any acknowledgement in his judgments.

For a Chairperson of the NHRC to have such an ignoble record at one level is black comedy. For a body that has always had its credibility under scrutiny (partly by design, partly due to inactivity), to have a chairperson (even if only for three years) whose judicial record is filled with such large-scale acts of judicial cruelty, seems like a fatal blow to what’s left of its credibility.

One can only hope Justice Mishra does not use the NHRC to further his jurisprudence of ‘cruelty’.

(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)