What Justice Mishra’s Tenure ‘Reveals’ About SC & Indian Judiciary

‘Justice Mishra’s SC tenure stands out for many reasons, but I’ll focus on his conduct on the bench’: Alok P Kumar

To say that Justice Arun Mishra’s six year tenure at the Supreme Court has been marked by controversy and strife is to put it mildly. He appear to have become the judge most synonymous with the Supreme Court’s ‘capture’ by the Union Government.

Across four Chief Justices (JS Khehar, Dipak Misra, Ranjan Gogoi and now AS Bobde), Mishra has been the default judge for any case that the Union Government considers politically sensitive. So much so that four judges held a press conference deprecating this trend against the then CJI, Dipak Misra –– only for one of them, Justice Gogoi, to do exactly the same when he came to office.

Why Justice Mishra’s Tenure in SC Will Stand Out In History

Justice Mishra’s tenure in the Supreme Court will stand out in history for many reasons but the one I’d like to focus on is his conduct on the bench. Justice Mishra has been, on occasion, ‘hostile’ towards lawyers, has shown an ‘unwillingness’ to hear arguments patiently, and has been seen using’ intimidation’ against counsels and parties. More often than not, Justice Mishra seemed to begin hearing a case with predetermined conclusions on what he wanted to do and appeared reluctant to listen to what was actually argued before him.

This is evident in his judgments which only reproduce parts of the arguments of the counsel and refuse to engage with any counter-arguments.

Most of his judgements are simply firmans which have been fattened with endless and selective quotations of paragraphs from other judgements.

All of this is best illustrated in the Indore Development Authority case concerning the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Relief Act, 2013. This was a beneficial provision aimed at helping those whose lands had been acquired by the government, but the government had not taken possession of the land for a long while, essentially leaving its fate in limbo. The provision itself is not the most clearly drafted but courts had taken an interpretation that had (rightly) emphasized the beneficial aspect of the provision for those whose lands were acquired.

However, this series of settled interpretations of the law were unsettled by Justice Mishra who simply refused to bind himself to judicial discipline in following larger benches. In fact, larger benches were then set up with him at the helm to overturn the previously well-settled law –– which almost no one except Justice Mishra seemed to have a problem with.

Arguments over the propriety of Mishra deciding the correctness of his own judgments in a larger bench were brushed aside by none other than Mishra himself.

• Justice Mishra’s tenure in the Supreme Court will stand out in history for many reasons but the one I’d like to focus on is his conduct on the bench.
• More often than not, Justice Mishra seemed to begin hearing a case with predetermined conclusions on what he wanted to do and appeared reluctant to listen to what was actually argued before him.
• The haste with which the Prashant Bhushan case moved through the system suggested that Justice Mishra had already ‘made up his mind’ about convicting Bhushan for contempt.
• Justice Mishra’s tenure will stand testament to some of the deep, underlying issues within the institution.

History Of Confrontation Between Prashant Bhushan & Arun Mishra

I have said elsewhere that this is Humpty Dumpty jurisprudence at its worst.

Much the same behaviour was on display in the ‘suo motu’ contempt case initiated by the Justice Arun Mishra-led bench against senior advocate Prashant Bhushan for his tweets. There’s been a history of confrontation between Mishra and Bhushan dating back to the time when Justice Mishra was on the bench hearing the ‘Sahara-Birla Papers’ case which was being argued by Bhushan. The criminal contempt case, taken up in violation of due procedure under the Contempt of Courts Act, 1971, saw Bhushan being held guilty of contempt. The judgment that barely addressed any of the arguments made by Bhushan and was more about the court giving itself a clean chit.

The haste with which the case moved through the system (that too in the middle of the pandemic) suggested that Justice Mishra had already ‘made up his mind’ about convicting Bhushan for contempt.

Two things however took the matter in a different direction. One, Bhushan called Mishra’s bluff on threats to imprison him and invoked Mahatma Gandhi in refusing to apologise to the court for his tweets. Two, the Attorney General of India, KK Venugopal, interceded on Bhushan’s behalf arguing that it would not behoove the court to send a lawyer of Bhushan’s standing and record in public interest to jail over two tweets. Faced with severe backlash, Mishra backed down and reduced punishment to a token fine – but not before adding a default sentence of imprisonment and debarment even to this token fine in clear breach of the law.

Revealing The Rot Within

Justice Mishra’s tenure has also exposed a drawback in the way law is taught in India. We are taught to read judgments and understand what the court is saying in order to develop analytical abilities that might help us in the future as lawyers. But maybe reading the judgments tells us little about the nature of law itself.

A future historian or legal scholar reading Justice Mishra’s judgments without the context will struggle to make sense of the cause of the controversies that erupted at the time.

Unless we properly understand the political circumstances in which a judgment was delivered, what happened at the hearings, and who stood to benefit, we lawyers might never really understand what the law is and continue to grasp in the darkness.

At one level, as has been pointed out, Justice Mishra’s tenure will stand testament to some of the deep, underlying issues within the institution. Whether it is in the extraordinary, unchecked powers of the Master of the Roster (that is, the CJI) to allocate cases on pure discretion, the inability of the collegium to ensure the appointment of independent judges, or the lack of any internal accountability mechanisms within the court, Justice Mishra’s tenure has, unwittingly, revealed the shaky foundations of the ‘central pillar of Indian democracy’.

(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.)