A Sui Generis Style: Justice Arun Mishra On The Supreme Court about:reader?url=https://www.bloombergquint.com/opinion/justice-arun...

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A Sui Generis Style: Justice Arun

Mishra On The Supreme Court
Suhrith Parthasarathy@suhrithGulnar MistryBookmark

19-24 minutes

BloombergQuintOpinion

Sep 02 2020, 12:12 PMSep 02 2020, 8:12 PMSeptember 02 2020,

12:12 PMSeptember 02 2020, 8:12 PM

“An institution,” said Ralph Waldo Emerson, “is the lengthened

shadow of one man”.

In the case of the Supreme Court of India, that person has usually
been the Chief Justice of India. But Justice Arun Mishra, whose
tenure ends today, has been an exception. No doubt, during
Mishra’s time on the bench, successive Chief Justices have each
shaped the Court’s performance. But his presence has invariably
been felt. He has been tasked with presiding over benches that
have heard some of the most politically and commercially
significant disputes to have reached the Court, sometimes to the
exclusion of more senior judges.

And his judgments and interventions in those cases have altered,

often in undesirable ways, the Court’s status as an independent
and final arbiter of disputes.

Mishra Asks, Mishra Answers, Mishra Reviews

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The legacy that Mishra leaves behind is perhaps best exemplified

by his judgment for a Constitution Bench in Indore Development
Authority v. Manohar Lal.

In rejecting requests seeking Mishra’s recusal, the bench plunged

a dagger into Lord Hewart’s axiom that justice should not only be
done, but must be seen to be done.

The issues in the case arose out of an interpretation of section

24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013. This
provision stipulated a set of conditions under which acquisitions
made through the erstwhile land acquisition law of 1894 would
stand mechanically annulled. Months after the 2013 law came into
force, in Pune Municipal Corporation v. Harakchand Misirimal
Solanki, a three-judge bench of the Supreme Court construed this
clause to the benefit of landowners.

This decision came to be regarded as the established law of the

land. It was followed by benches of the Supreme Court and of
High Courts across the country in a multitude of disputes. In
December 2017, however, a two-judge bench comprising Justices
Mishra and Amitava Roy questioned the verdict’s correctness and
invited a reference to a larger bench. Soon thereafter, a three-
judge bench was constituted. Once again, though, it had Mishra
presiding over it. Any reticence that he may have exhibited earlier
was now firmly set aside, as the bench—with Justice
Shantanagoudar dissenting in part—declared that the verdict in
Pune Municipal was not good law. This judgment, in Indore
Development Authority v. Shailendra, was concerning not only
because the new interpretation was inimical to the interests of
landowners but also because it had been Mishra, after all, who

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had sought the reference in the first place.

Later, another three-judge bench decreed that all cases

concerning Section 24(2) of the LARR should be kept in abeyance
until the muddle was resolved. Even as matters were pending
before that bench, the Chief Justice constituted a five-judge panel.

In a Court with more than 30 judges, it came as some surprise

when Mishra was asked to preside over the five-judge bench as
well.

Requests made seeking his recusal were rejected, and the verdict
in Pune Municipal was, this time, conclusively overruled. In doing
so, the Court erred in its reading of the statute. But what has
proved even more damaging to the rule of law is the disregard
shown for principles that are integral to natural justice because, as
Stephen Sedley put it, “whatever the reality, appearances matter,
and nowhere more so than in the administration of justice.”

In Re Master Of The Roster

Mishra’s time on the bench has been somewhat irresolute—the
fidelity to past precedent that was jettisoned in Indore
Development Authority was invoked only months earlier by a
Constitution Bench that he was on.

In Campaign for Judicial Reforms v. Union of India (2017), the

Supreme Court followed its 1997 decision in Prakash Chand, and
held that, as in the case of the High Courts, administrative control
of the Supreme Court vested solely in the office of the Chief
Justice of India. The original reference to a Constitution Bench had
its genesis in a controversy surrounding the then-Chief Justice
Dipak Misra.

The question before the Court was whether the Chief Justice could

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constitute a bench to hear a matter that had a direct bearing on the

investigation of a First Information Report that implicated the Chief
Justice himself.

The Constitution Bench declared that the Chief Justice of India

was “the master of the roster”, that his office enjoyed complete
autonomy over the Court’s administrative affairs—“an institution”,
the judgment recorded, “has to function within certain parameters
and that is why there are precedents, rules and conventions.”

The Chief Justice’s position as the master of the roster, which

Campaign for Judicial Reforms affirmed, has routinely proven
controversial. Perhaps never more so than in In Re Matter of Great
Public Importance Touching the Independence of the Judiciary,
where Mishra was a junior judge on a bench presided over by
then-Chief Justice Ranjan Gogoi. Seeing as the bench was
constituted to launch an inquiry into whether or not allegations of
sexual harassment against Gogoi were a conspiracy against the
Court, Gogoi ought not to have been on the bench at all and yet he
was. Things became curiouser still when the short order issued by
this bench of three left out Gogoi’s signature, an act that one can
only presume had the silent acquiescence of his colleagues.
Thereafter a new bench constituted by Gogoi, with Mishra
presiding, appointed retired Justice Patnaik to inquire into the
alleged conspiracy. Although a report was submitted in October
2019, the matter hasn’t been listed since.

Mishra himself has been in the eye of the storm on other

occasions. For instance, only days before the 2017 decision in
Common Cause v. Union of India (regarding the Sahara-Birla
papers), he was photographed at a wedding with Shivraj Singh
Chouhan, alleged to be one of the recipients of a pay-off. The

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lawyer for the petitioner, Prashant Bhushan (yes, him again)

tweeted (yes, that again) the photograph, prompting a debate on
whether Mishra ought to have recused himself and (given that he
had not) whether the judgment ought to be recalled.

Similarly, in August 2019, noted lawyer Dushyant Dave addressed

an open letter to the judges of the Supreme Court bemoaning the
manner in which cases were assigned to certain benches.

He pointed out that while this very issue was the subject matter of
the famous judges’ Press Conference of January 2018, things had
scarcely improved since. “It is not necessary to illustrate the list of
such cases,” wrote Dave, “except to say that there are far too
many.” In particular, Dave questioned the “improper” manner in
which two appeals by Adani Group companies (Parsa Kenta
Collieries and Adani Power (Mundra) Ltd.) were heard during the
preceding summer vacation. He pointed out that these cases had
been listed without an order by the regular bench requiring them to
be heard during the court holidays, without any evident urgency in
the matter, and in apparent derogation of guidelines and norms
approved by the Chief Justice.

Mishra was on that summer bench and decided the cases, both to
the benefit of Adani Group.

Concerns over perception were brought to the forefront when,

speaking at the inaugural event of the International Judicial
Conference 2020, Mishra eulogised the Prime Minister, whom he
described as a “versatile genius”. What is more, India, he said, had
become “a responsible and most friendly member of the
international community” under the stewardship of the
“internationally acclaimed, visionary Prime Minister.”

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The Union of India is the biggest litigant in the country, both in

terms of volume and stature—when a judge expresses, in such
effusive terms, his regard for the head of the Union Cabinet, he
undermines his own impartiality.

As a judge of the Supreme Court, Mishra’s career is also notable

for judgments that have settled the law of the land, in areas
ranging from affirmative action policies to statutes governing
property and civil law.

At least six of these rulings merit attention.

Daughters Vs Women
Most recently, Justice Mishra held, in Vineeta Sharma v. Rakesh
Sharma, that section 6 of the amended Hindu Succession Act,
1956 applies retroactively, to give daughters born in Hindu
undivided families the same rights as sons, even where a father
had died before the amendment had taken effect in 2005.

The judgment has been widely hailed. Indeed, in holding that

daughters have equal rights as sons and that a woman’s right to
share in a coparcenary emerges from her birth, the court
interpreted the law progressively.

However, it overlooked a number of interpretive quandaries.

For instance, it discounted the rights of other women—the mother

and wife of a Hindu man, for example—to seek a share on the
death of a male coparcener, which were protected under the law
as it stood before the amendment. If one is to apply the amended
statute as interpreted by the Supreme Court, the rights of some of
the women that had been expressly protected by the erstwhile
legislation will stand nullified. Mishra’s judgment does not so much
as reference this conundrum.

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Reservations, Reservations
While some might well see the Court’s judgment in Vineeta
Sharma as vital to redressing a historical inequality, the judgment
of a Constitution Bench headed by Mishra in Chebrolu Leela
Prasad’s case, decided in April this year, achieved the converse.

In striking down reservations made for Scheduled Tribes for

appointments to educational posts in Scheduled Areas in Andhra
Pradesh and Telangana it paid no heed to basic principles of equal
treatment. The judgment is grounded in, amongst other things, a
belief that 100% reservation would sacrifice merit at the altar of
reservations—a thesis that betrays a regrettable lack of
understanding of how affirmative action works, or ought to.

Even worse, however, is how the court dealt with the appointments
made in pursuance of the Government Memorandum. The Court
saved these appointments, but only conditionally. It held that if the
states of Andhra Pradesh and Telangana attempted a similar
exercise at any time in the future and exceeded the 50% limit of
reservation, appointments made with effect from 1986 “till date”
would stand nullified. In finding thus, the Court not only ruled on
any prospective reservation beyond 50% without regard to the fact
that such a policy may be necessitated by different considerations,
it also transgressed its jurisdiction and arrogated to its present self
the power to rule on decisions that could only be made in the
future.

In the week leading up to his retirement, Mishra exhibited a keener

understanding of the complexity of reservations. In State of Punjab
v. Davinder Singh, authoring a judgment for a Constitution Bench,
Mishra concluded that the 2004 judgment in E.V. Chinnaiah v.
State of AP ought to be referred to a larger bench. Through a

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careful and comprehensive review of past precedent, he held that

State Governments must be allowed to sub-classify Scheduled
Castes and Scheduled Tribes where necessary. This is because,
as the Court said, “the constitutional goal of social transformation
cannot be achieved without taking into account changing social
realities.”

How the larger bench decides will have deep ramifications for
affirmative action programmes in India.

Adverse Possession Set Right

In Ravinder Kaur Grewal v. Manjit Kaur (2019), Mishra, writing for
the Court, re-established the proprietorial right of adverse
possession under Indian law. The bench overruled an earlier
verdict—and this time it was within its powers to do so, given that
the ruling had been rendered by a smaller panel—to hold that a
plea of adverse possession was just as open for a plaintiff in a civil
suit to take as it was for a defendant.

Adverse possession, or a squatter’s right, refers to a person

acquiring legal ownership based on continuous possession of land
over which she doesn’t otherwise have legal title. It is a concept
entrenched in the common law. But in 2013, in a judgment that
departed from convention, the Court ruled that a plea of adverse
possession could only be used as a defence. Mishra’s judgment
sets this position right. It recognises, correctly, that a plaintiff has a
right to seek a declaration of ownership of property emanating out
of adverse possession; that the plea can be invoked not only as a
shield but also as a sword.

AGR Adjusted
Soon thereafter, in Union of India v. Association of Unified Telecom

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Service Providers of India & Ors. (the AGR dues case) a bench
headed by Mishra was tasked with interpreting the definition of
“adjusted gross revenue” used in license agreements between
telecom service providers and the Department of
Telecommunications (DoT).

The judgment’s consequences for the telecom industry were

always likely to be huge. In a verdict delivered in October 2019,
the Court held in favour of the DoT’s reading of the definition.
According to it, telecom companies had attempted to rewrite
contractual terms and “wriggle out of the rigour of the definition”,
which took within its ambit the phrase “any other miscellaneous
revenue.” The upshot was that license fees were now payable
even on income that was not attributable to activities under the
license.

A central issue in the dispute was this: why should the phrase “any
other miscellaneous revenue” include income from sources
extraneous to the license arrangement? But the Court didn’t so
much as frame this as a question. It instead treated the answer as
obvious, without explaining why this was so. The Court also found
that telecom service providers were each obligated to pay penalty,
interest, and interest on penalty on the miscellaneous revenue,
resulting in the licensees being liable to pay lakhs of crores
—figures so significant, and potentially devastating, that even the
DoT was forced to make an application requesting that the
companies be allowed to make staggered payments over a period
of 20 years. Since the judgment, the Court’s stand had been
unrelenting, and even, on occasion, furious. Contempt notices
were issued to directors of the errant companies on the one hand
and to an officer of the DoT on the other.

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In some ways, this foreshadowed Mishra’s enthusiasm for the law

of contempt.

Eventually, the Court accepted the application for staggered

payments, but rather than twenty years—which the judgment,
without explanation, said was “excessive”—it directed payment
within ten years.

Mishra’s tenure is also punctuated by a contentious record on civil

liberty cases.

No doubt, in Sushila Aggarwal v. State, a Constitution Bench on

which he sat handed down a progressive reading of the law when
it held that orders granting anticipatory bail are not meant to be
limited to a fixed period and can continue till the end of a trial. But
when it came to determining issues of personal liberty outside of
the vacuum offered by abstract questions of law, his decisions took
a turn for the conservative. At least two separate instances
demonstrate this outlook.

Gautam Navlakha’s Transfer

In July this year, a bench led by Mishra set aside an effort by the
Delhi High Court to inquire into the haste with which Gautam
Navlakha was removed from the High Court’s jurisdiction and
transferred to Mumbai. The Court was in the midst of hearing a
plea made by him for bail after being charged under the Unlawful
Activities Prevention Act. As the former Patna High Court judge
Anjana Prakash has pointed out, the NIA’s conduct was
“unseemly”, and the Delhi High Court was certainly within its
powers to examine why Navlakha had been removed from its
jurisdiction. The independence of the judiciary, after all, demanded
nothing less. The Supreme Court not only found that the Delhi

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High Court had erred in intervening in the case, but it also

expunged the prima facie remarks made by Justice Anup
Bhambhani against the NIA.

Saifuddin Soz’s Detention

This indifference towards personal liberty was also evident in the
bench’s failure to decide on the validity of the orders detaining
Saifuddin Soz in Srinagar. When the case came up for hearing in
July, four weeks after a petition for habeas corpus had first been
moved, the government told the court that Soz was free to move
around, that there had never been any order detaining his liberty.
At this point, given the plea made by Soz’s counsel, the Court
ought to have tested the veracity of the government’s statement.
Instead, it took the State at its word, and disposed of the petition.
Soz was far from free – only hours later TV channels carried
footage showing Soz being physically restrained and shouting
from behind the walls of his home, “The government has lied to the
Supreme Court.”

If Soz’s case serves as a symbol of a Kafkaesque bureaucratic

State, the judgment convicting Prashant Bhushan for contempt of
court exemplifies a form of ruling by fiat.

Prashant Bhushan’s Tweets

In question here were a pair of tweets through which Bhushan
offered his opinion on the Court and its recent Chief Justices. The
tweets were innocuous at best and waspish at worst. But a bench
headed by Mishra concluded, summarily, that he had scandalised
“the entire institution of the Supreme Court.”

The 108-page long judgment, delivered just days before Mishra’s

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retirement, is riddled with assertions about the tweets. They are

variously described as scurrilous, offensive, intimidating and
malicious. Despite its length, there is, at best, only sophistic
justification offered to show how the statements, in fact, constitute
contempt of court.

What is more, large parts of Bhushan’s affidavit, in which he set

out his defence, were overlooked.

That the contempt law was amended in 2006 to provide additional

safeguards against wanton prosecution was also brushed aside.
Notably, that amendment stipulates, first, that contempt arises only
when the Court is satisfied that the speech in question
substantially interferes, or tends to interfere, with the due course of
justice, and, second, that contempt proceedings won’t lie if the
statement made is true and is in public interest. The Court
discarded these legislative niceties, claiming that its power to
punish for contempt stemmed from Article 129 of the Constitution,
which granted it illimitable authority—an authority that extended
apparently to both censoring and punishing inconvenient speech.

On Aug. 31, the Court delivered a separate judgment imposing a

fine of Re 1 on Bhushan. He has been directed to deposit the
amount by Sept 15. Should he fail to do so, he will be imprisoned
for three months and his licence to practice law will stand
suspended for three years. Bhushan has already indicated that he
will pay the fine, but he will be seeking a review of the conviction.

In its judgment imposing the sentence, the Court claimed it has

acted with magnanimity. But the danger the verdict poses is
evident. It holds, for instance, that Bhushan’s statements were
neither bona fide nor made in public interest, because his affidavit

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in reply questions the functioning of a large number of retired and

sitting judges, including former Chief Justices. According to the
Court, a consideration of the veracity of his allegations would
amount to an “aggravation of the contempt.” This, however, puts
the cart before the horse.

On the judgment’s logic, the defence of truth would never be

available to a person charged with contempt.

The message could not be clearer: any criticism of a judge, which

the Court finds discomfiting, is contemptuous regardless of its
truth.

In many ways, the ruling in Prashant Bhushan serves as an

archetype of Mishra’s career: it displays a proclivity for embossing
on the rule of law his sui generis style of justice. This outlook might
well appeal to some. But it abandons the traditions of our
Constitution; it treats reason with disdain; and it abjures a genuine
jurisprudence built on a commitment to principles. It is this
negation of constitutionalism that threatens our faith in the courts,
and not, as the judgment in Prashant Bhushan held, what might be
written in the press, or what a pair of tweets might say.

Suhrith Parthasarathy is an advocate practicing at the Madras

High Court and Gulnar Mistry is an advocate practicing at the
Bombay High Court.

The views expressed here are those of the authors and do not
necessarily represent the views of BloombergQuint or its editorial
team.

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