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Justice Arun Mishra's Controversial Tenure Leaves Questions On Public Confidence In Judiciary

Manu Sebastian
2 Sep 2020 2:01 PM GMT
Justice Arun Mishra
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Justice Arun Mishra (07.07.2014 - 02.09.2020 as SC judge)

While Justice Mishra demits his office after handing over a mixed bag of verdicts, he also leaves behind several pertinent questions as to what constitutes the appropriate judicial conduct.

Mr. Ranjan Gogoi (retired CJI and now a Rajya Sabha MP), once said "sometimes noisy judges are needed to act as democracy's first line of defence".

Then he did not specify what he meant by "noisy judge" – whether an activist judge or a judge who just makes a lot of news.

Thinking about this in the context of Justice Arun Mishra's retirement as a judge of the Supreme Court, one can certainly say that he was the most news-creating judge of the recent times.

This is partly due to the fact that Justice Mishra was assigned with many high-profile and politically sensitive cases. Apart from this, his tendency to make sharp and at times explosive remarks from the bench made the proceedings in his court-room melodramatic.

Justice Mishra - whose father Hargovind Mishra was a judge of MP High Court - had a stint of over six years in the Supreme Court. At the time of his elevation as a judge of Madhya Pradesh High Court in 1999, he was the Chairman of the Bar Council of India. Before his elevation to the Supreme Court, he officiated as the Chief Justice of the High Courts of Rajasthan and Calcutta.

If one takes a list of politically sensitive cases over the past 4-5 years, Justice Mishra's presence is noticeable in them:

  1. Sanjiv Bhatt's allegations on Gujarat riots dismissed: In October 2015, a bench comprising Justices H L Dattu and Arun Mishra dismissed the petition filed by Sanjiv Bhatt(then a Gujarat cadre IPS officer) seeking independent SIT probe in the FIRs registered against him. Bhatt claimed that the Gujarat police was persecuting him after he made allegations about the role of top government functionaries in the Gujarat riots. While turning down Bhatt's plea for SIT probe, the judgment authored by Justice Mishra
    discarded
    Bhatt's claim that he was present at a meeting headed by the then Gujarat CM Narendra Modi, where the CM allegedly asked police to go soft on anti-Muslim rioters. The judgment stated that Bhatt's claims were not credible and observed that he kept quiet for over nine years and was in an active touch with top political rivals and activists.
  2. Sahara- Birla case seeking probe against Narendra Modi
    : A bench comprising JJ Arun Mishra and Amitava Roy dismissed a petition filed by Common Cause seeking probe into alleged pay-offs to Narendra Modi(when he was Gujarat CM) and other top ruling party members, based on documents obtained from raids of Sahara and Birla offices. The court held that investigation cannot be ordered on the basis of diary entries and electronic records which are not admissible in evidence, especially when it is sought against "high constitutional functionaries". The judgment courted controversy as days before its delivery, there were
    reports
    of Shivraj Singh Chouhan -whose name was also allegedly in the documents - attending the wedding ceremony of Justice Mishra's nephew at Gwalior as his invitee.
  3. Upheld appointments of CVC KV Chowdary and VC TM Bhasin : In January 2018, a bench headed by Justice Mishra dismissed a PIL filed by Common Cause questioning the appointments of K V Chowdary and TM Bhasin as the Chief Vigilance Commissioner and Vigilance Commissioner respectively on the contention that they did not fulfill the criteria of "institutional integrity". The petitioner, represented by Prashant Bhushan, argued that Chowdary in his earlier stints as the head of the CBDT and the advisor of SIT on black money, had gone slow on the investigation into Sahara-Birla papers and black money trails. Justice Mishra's judgment dismissing the plea stated "We are nowadays in the scenario that such complaints cannot be taken on face value. Even against very honest persons, allegations can be made. Those days have gone when filing of the complaints was taken as serious aspersions on integrity".
  4. Judge Loya case : The petition seeking probe into the death of Judge Loya while hearing the Sohrabuddin case – in which Amit Shah was an accused - was first listed before a bench led by Justice Mishra. This listing became the trigger for the unprecedented press conference by four senior judges in January 2018, where they alleged that "cases having far-reaching consequences for the nation" were being "selectively" assigned to certain "benches of preference". Following the controversy, Justice Mishra recused from the case.
  5. Haren Pandya case : A bench comprising Arun Mishra and Vineet Saran overturned the Gujarat HC verdict which acquitted 12 persons implicated by Gujarat police in the murder of former home minister of the state. The bench reversed the findings of the Gujarat HC that the CBI investigation was "botched up". The bench also endorsed the version of the CBI that the murder was part of an "international conspiracy" executed to "spread terror amongst Hindus" to avenge the anti-Muslim Gujarat riots of 2002. While restoring the conviction of the trial court, the bench also dismissed with Rs 50,000 costs a plea seeking fresh inquiry into the death on the basis of certain new materials. The judgment has come
    under criticism
    on the ground that the SC ignored serious inconsistencies and improbabilities in the testimony of the sole eyewitness which was relied on to reverse the acquittals[1].
  6. Jay Shah -The Wire case : Justice Arun Mishra-led bench considered the petition filed by online news portal 'The Wire' challenging the gag order on publication of a report against Jay Shah, son of Amit Shah. During the hearing, Justice Mishra made
    oral remarks criticizing
    the functioning of online portals. The bench said publishers and websites should not make the allegations public soon after sending the notice. "Freedom of press is supreme but it can't be one-way traffic," the bench said. "Yellow journalism should not take place." 'The Wire' withdrew the plea from the SC to stand trial in the case.
  7. Approved Nageswara Rao's appointment as interim CBI Director
    : A bench headed by Justice Mishra dismissed a PIL challenging the appointment of M Nageswara Rao as the interim director of the Central Bureau of Investigation. Nageswara Rao was picked by the Centre to handle the charge of CBI director after the incumbent Alok Verma was shunted out in an extraordinary midnight exercise.
  8. Centre's contempt petition against Prashant Bhushan : In 2019, the Union Government, through the Solicitor General, had filed a
    contempt petition
    against Prashant Bhushan over his tweet against AG in the context of the selection of CBI director. Though AG expressed that the contempt need not be pressed after Bhushan expressed regret for his tweet, the bench headed by Justice Arun Mishra said that it would prefer to keep the matter pending to examine the larger issue of lawyers commenting on sub-judice cases. That contempt case is still pending (Contempt Case (Criminal) 1/2019 & 2/2019).
  9. Pleas against J&K blockade : The pleas against the communication blockade and curfew was first listed before a bench headed by Justice Arun Mishra. The bench adjourned the hearing after observing that the government should be granted some time for restoring normalcy. The petitions were later considered by another bench.
  10. Jammu-Kashmir detention matters: Justice Mishra-led bench dealt with the habeas pleas challenging the detention of J&K leaders like Omar Abdullah, Mehbooba Mufti and Saifuddin Soz. When the petition filed by Sara Abdullah Khan against detention of Omar Abdullah came first, Justice Mishra's bench granted a two weeks adjournment
    observing
    "if the sister could wait for such a long period, then 15 days won't make a difference". The Centre ordered the release of Omar Abdullah during the pendency of his petition. Mufti's petition has not been listed after February. As regards Soz, the bench closed the case based on the statement of Centre that he was not under detention. Soon after the SC order, certain media reports emerged claiming that Soz was kept under house arrest. Though media reports suggested that Soz was under house arrest contrary to the claims of the J&K admin, the SC has not sought any explanation or clarification with respect to that.
  11. Bhima-Koregaon cases : A bench headed by J Mishra dismissed the petitionsfiled by Anand Teltumbde and Gautam Navlakha challenging the Bombay HC verdict denying them bail. In another case, the same bench expunged the remarks made by the Delhi HC as per which the NIA was criticized as having shown hastiness in taking Navlakaha to Mumbai. Earlier, a bench led by Justice Mishra had declined the prayer of Navlakha to quash the FIR.
  12. Rajasthan political crisis : The bench headed by Justice Mishra considered the petitions arising out of the Ashok Gehlot-Sachin Pilot spat in Rajasthan. Seemingly disapproving the disqualification move against Sachin Pilot, Justice Mishra observed during the hearing that "voices of dissent cannot be suppressed". Even when the Rajasthan HC was seized of the matter after reserving verdict, the SC said that it will hear the larger issues of the case and
    ordered that the judgment
    to be passed by the HC will be subject to the SC orders.

A section of the bar perceives Justice Mishra to be having ties with the ruling dispensation. In fact, amid the Loya controversy, Senior Advocate Dushyant Dave, the present President of Supreme Court Bar Association, openly said "Everyone knows Justice Mishra has close relations with the BJP and top politicians." In 2015, several top ruling party leaders, such as Shivraj Singh Chouhan, Arun Jaitley, Vasundara Raje, etc were reportedly spotted at a reception organized by Justice Mishra in connection with his nephew's wedding. This had raised eyebrows as Justice Mishra was then hearing the Sahara-Birla papers case. The perception of his closeness with the executive was strengthened by the buzz created by the attendance of Prime Minister Narendra Modi, Home Minister Amit Shah, Defence Minister Rajnath Singh and several other top leaders at the judge's residence in early 2020 for the mundan ceremony of his grandchild. Later, Justice Mishra himself lent weight to such perceptions by showering unabashed praises on Prime Minister Modi by calling him a "versatile genius...who acts locally and thinks globally", which drew flak from lawyers' bodies.

Supreme Court Bar Association Condemns Justice Arun Mishra's Praise For PM Modi [Read Resolution]

In this regard, it is relevant to make reference to two principles stated in the 'Bangalore Principles of Judicial Conduct':

  • A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.
  • The behaviour and conduct of a judge must reaffirm the people's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. (emphasis supplied)

Apart from the politically sensitive cases, Justice Mishra was a crucial presence in cases in which the Supreme Court came under scanner as an institution – the CJAR-medical college bribery cases, impeachment case against Dipak Misra, sexual harassment case against Ranjan Gogoi and the latest Prashant Bhushan contempt case. During the hearing of the medical college bribery case, Justice Mishra said several times that Prashant Bhushan and Kamini Jaiswal – the lawyers arguing the case – must be held in contempt for seeking a probe against the then CJI Dipak Misra. Justice Arun Mishra was part of the bench which dismissed the CJAR petition seeking probe into medical college bribery case with Rs 25 lakhs cost. In June 2020, Justice Mishra-led bench warded off allegations of favoritism shown by Registry in listing cases by dismissing a petition filed by a SC lawyer with a cost of Rs 100, saying that 'registry was being blamed unnecessarily".

In some instances, Justice Mishra displayed a tendency to jump into quick conclusions, without necessarily following the due procedure. For example, in the Haren Pandya case, the materials projected by the petitioner as fresh evidence in the case were discarded by a few strokes of sentences without any effective discussion or elaborate reasoning(the judgment analyzed more in detail here). In the sexual harassment case allegations against Mr Rajan Gogoi, Justice Arun Mishra was unhesitant to term the allegations as a part of larger conspiracy by fixers, even before the results of the inquiry. In the Prashant Bhushan contempt case, many were surprised when Justice Mishra's bench said during the hearing on the sentence that the guilty verdict was passed without fully considering Bhushan's affidavit. The bench also showed extreme reluctance in allowing Bhushan's lawyers to take up the defence of truth. Later, a post-facto justification was provided by the Court in the sentencing order by saying that the defence of truth was not bona-fide and in public interest, though no such discussion was there in the guilty verdict. The suo moto contempt case, which resulted in a one rupee fine on Prashant Bhushan, was a misadventure which diminished the prestige of the Court in the public eye. At one juncture, the Court gave the impression of desperately seeking an exit route from the case by repeatedly asking Bhushan to apologize, even as he stood firm on his statements.

'Why Only Certain Judges Get Politically Sensitive Matters?' : Dave Raises Points Of Criticism Against SC In Prashant Bhushan Contempt Case

Controversy over handling of Adani cases

Last year, Senior Advocate Dushyant Dave made an astounding complaint in a letter sent to the CJI that cases with high commercial stakes for Adani group were irregularly listed before a bench headed by Justice Arun Mishra. While clarifying that he was not questioning the merits of the verdicts in these cases, Dave alleged that the cases were given out-of-turn listing and were posted before J Mishra's bench contravening the SC roster. The complaint which attracted wide publicity has not yet elicited any action or response from the court despite containing serious allegations of irregularities raised by a prominent member of the SC bar.

Land Acquisition case controversy

Justice Arun Mishra's refusal to recuse as the presiding judge of the Constitution Bench which considered the issue relating to Section 24 of the new land acquisition law will remain an unedifying lesson on judicial propriety. In 2018, a 3-judge bench led by Justice Mishra declared the interpretation given by another 3-judge bench to Section 24 in 2014 as bad in law. This in itself was an act of impropriety because a bench cannot overrule another coordinate bench. In fact, one judge (Justice M Shantanagoudar) dissented from Justice Mishra led majority citing this impropriety. In fact, the decision of the 3-judge bench in 2018 came after a 2-judge bench headed by Justice Mishra doubted the correctness of the 2014 verdict on Section 24. Later, another 3-judge bench(which had two of the judges of the 2014 verdict) took objection to the approach of Justice Mishra's bench and stayed the operation of the verdict given by it. This led to Justice Mishra's bench referring the issue to Constitution Bench. In October 2019, a Constitution Bench headed by Justice Mishra was notified to settle the controversy. A group of petitioners sought Justice Mishra's recusal from the bench stating that there was a likelihood of bias as Justice Mishra is ruling on the correctness of his own view. Justice Mishra did not receive this well, and wondered if the request for recusal was an attempt to "malign the court". Later, the demand for recusal was rejected through a judgment authored by Justice Mishra. The judgment lays down a problematic precedent, as Justice Mishra made a subjective appeal to his own conscience to inverse the well-settled test of judicial bias – the reasonable perception of bias in the minds of the litigant (more detailed in this article).

In March 2020, the Constitution Bench delivered the verdict, with Justice Mishra authoring the judgment which upheld the view expressed by him in 2018. There is a strong criticism that the judgment has effectively re-written Section 24 so as to deprive landowners of their right to fair compensation(may be read here and here).

The hearing of the case witnessed a verbal spat between Justice Mishra and Senior Advocate Gopal Shankaranarayanan, which went out of proportion, resulting in the Supreme Court Advocates-on-Record Association passing a resolution urging Justice Mishra to "be little more patient" while dealing with lawyers. The issue attained a quietus after Justice Mishra apologized.

Why Justice Arun Mishra's Non-Recusal Is A Problematic Precedent?

Controversy over the appointment of his brother as HC judge

The appointment of Justice Arun Mishra's brother, Mr. Vishal Mishra, as a judge of Madhya Pradesh High Court in May 2019 had become controversial. While choosing Mr. Vishal Mishra – who was formerly the additional advocate general of MP - the 3-member collegium made an exception to the age-bar of 45 years prescribed in the MoP. The Centre approved the appointment within ten days of the Collegium recommendation. Justice Arun Mishra was then the fourth senior judge of the Supreme Court and part of the five-member Collegium considering names for elevation to SC(but he was not part of the 3-member collegium which approved Mr. Vishal Mishra ). Senior Advocate Dushyant Dave raised eyebrows at the process of appointment of Mr. Vishal Mishra, who, according to Dave, "in a normal situation would never have been recommended, being below the age bar adopted by the Collegium itself".

Notable decisions

Justice Mishra was also part of several notable judgments during his tenure. Some of them are listed below :

  1. Allowed Centre's review against the dilution of SC/ST Act by a two-judge bench and upheld the amendment law passed in 2018 to overcome those dilutions. Justice Mishra observed in the judgment that discrimination against SC/STs was still prevalent and that it cannot be presumed that the provisions of the protective legislation were being misused. (Union of India vs State of Maharashtra and others).
  2. Justice Mishra-led constitution bench held that anticipatory bail cannot be limited to a fixed time period except in special and exceptional circumstances. The bench also clarified that the accused released on anticipatory bail need not surrender and seek regular bail for recovery under Section 27 of the Indian Evidence Act. (Sushila Aggarwal vs State of Maharashtra and others).
  3. Justice Mishra-led 3-judge bench held that judicial officers cannot seek direct recruitment to the quota earmarked for practicing advocates for the post of District Judge(Constitution Bench, Dheeraj Mor vs Hon'ble High Court of Delhi and others) .
  4. Justice Mishra-led Constitution Bench held that consumer forum has no power to extend the time for filing opposite party's version beyond the statutorily fixed 45 days(CB, New India Assurance Co Ltd vs Hilli Multipurpose Cold Storage Pvt Ltd).
  5. Justice Mishra-led Constitution Bench held that co-operative banks will come within the ambit of SARFAESI law and that they have to follow Banking Regulation Act while carrying out banking business (Constitution Bench, Pandurang Ganpati Chaugule vs Vishwasrao Patil Murgud Sahakari Bank Ltd)
  6. Justice Mishra-led Constitution Bench held 100% reservation for Scheduled Tribes in teaching posts in Andhra Pradesh to be unconstitutional(CB, Chebrolu Leela Prasad Rao and others vs State of AP and others). The judgment authored by Justice Mishra also called for a revision of SC/ST list by saying that the affluent and the advanced among the SC/ST were not permitting the quota benefits to reach the needy within the community. These remarks have come under criticism as unwarranted and without empirical basis (may be read here).
  7. Upheld NEET by rejecting the contention that a uniform national level exam for medical admission will violate the rights of minority educational institutions( 3-judge bench, Christian Medical Institution, Vellore and others vs Union of India and others).
  8. Held that State can regulate appointments in minority educational institutions for the betterment of standards(3-judge bench, S K Md Raffique v Managing Committee, Contai Rehmania High Madrasah and others).
  9. A constitution bench led by Justice Mishra referred to larger bench the issue regarding validity of sub-quota within SC-ST reservation list, after doubting the correctness of 'EV Chinnaiah' decision. In this judgment too, Justice Mishra reiterated the observations that the advanced group within SC-ST were cornering the quota benefits, and that the fruits of the reservation were not reaching the lower-strata(State of Punjab and others vs Davinder Singh and others).
  10. Held that in NDPS cases, the quantity of neutral substances must also be taken into consideration along with actual drug weight to assess 'small or commercial quantity (3-judge bench, Hira Singh vs Union of India)
  11. A 3-judge bench headed by Justice Arun Mishra settled conflicting views on Section 6 of the Hindu Succession Act to hold that daughters acquired equal coparcenary rights as on the date of coming into force of HSA(2005 amendment) even if the father was not alive then(Vineeta Sharma vs Rakesh Sharma).
  12. A bench headed by Justice Mishra ordered the cancellation of RERA registration of Amrapali in July 2019 on grounds of financial irregularities and ordered an ED probe into it. The bench had been since overseeing the construction of the remaining housing project by the state-owned NBCC.
  13. Pharmacy Council vs AICTE : A bench led by Justice Mishra held that the Pharmacy Council of India shall alone have the jurisdiction in the field of pharmacy, and not the All India Council for Technical Education (The Pharmacy Council of India vs. Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy)
  14. A Constitution Bench led by Justice Mishra held that State Legislature lacked legislative competence to enact a provision providing direct appeal to Supreme Court of India(Rajendra Diwan vs Pradeep Kumar Ranibala).
  15. Settled the position that for levy of sales tax, place of contract is relevant than the location of goods(The Great Eastern Shipping Company Ltd v State of Karnataka).
  16. Settled the position that even a person claiming title by adverse possession can maintain a suit under Section 65 of the Limitation Act( Ravinder Kaur Grewal vs Manjit Kaur and others)
  17. Struck down Kerala medical ordinance : A bench led by Justice Mishra struck down the ordinance brought by Kerala government to get over an earlier judgment setting aside medical admissions to certain private colleges. The bench asserted that laws cannot be made to circumvent judicial orders(Medical Council of India vs State of Kerala).
  18. Struck down the rules framed by the Madras HC to initiate disciplinary action against advocates stating that the autonomy of the bar cannot be taken away. In the same judgment, Justice Mishra observed that to attribute political motives to judgments is a grave indiscipline amounting to contempt of court( R Muthukrishnan vs Registrar General, High Court of Judicature of Madras).
  19. Justice Misra-led Constitution Bench held that trial in NDPS cases will not become vitiated by the mere fact that the informant happened to be the investigating officer(Mukesh Singh vs State)
  20. Justice Misra-led Constitution Bench held that while States can provide reservation for in-service candidates in PG medical courses, Medical Council of India cannot (Tamil Nadu Medical Officers Association and others vs Union of India)

Toughness in implementing orders

Justice Mishra is known for taking a tough stance to see that the directions of the court are implemented. This was particularly visible in the Kochi-Maradu flats case. Justice Mishra continuously monitored the implementation of the direction to demolish the four apartments for violation of CRZ regulations. Also, Justice Mishra lashed out at another vacation bench of the SC for granting a stay of the demolition of the Kochi-Maradu flats. "That bench should not have passed any order", Justice Mishra remarked at the course adopted by the bench of Justices Indira Banerjee and Ajay Rastogi.

In the Delhi-air pollution matter, Justice Mishra threatened the Chief Secretaries of States of UP, Haryana, Punjab and NCT to Delhi with severe contempt action if the court directions were not enforced.

In the AGR matter, he came down heavily on the Department of Telecom for attempting re-assessment of the dues of the telecom companies and threatened the Managing Directors of the companies with contempt action if they defaulted in payment.

Justice Mishra passed scathing oral observations on noting that the Kerala High Court had passed an order against the SC directions in the Malankara Church dispute case. "It is a very objectionable order. Who is this judge? The High Court has no right to tinker with our decision. This is the height of judicial indiscipline. Tell judges in Kerala they are part of India", Justice Mishra furiously remarked, throwing to wind the caution advised by the Supreme Court itself in several precedents that higher court judges should not make personal scathing remarks against judges while disagreeing with their decisions.

When Justice Mishra backtracked from his orders at the instance of Union Govt

There are two instances where the bench led by him backtracked from earlier orders at the instance of Union Government

One, in the Forests Rights Act case, Justice Mishra-led bench stayed the order passed for the eviction of persons whose claims as forest dwellers were rejected. This was after several activists pointed out that the settlement of claims under the FRA was fraught with several irregularities and decried that the order would impact nearly 10 lakh genuine forest dwellers. Following this, the Central Government moved an application seeking stay of the eviction order.

Second was in the case relating to Guru Ravidas Temple of Delhi, which was razed down by the Delhi Development Authority following stern directions from Justice Mishra's bench. The demolition of temple dedicated to Guru Ravidas - a 16th century mystic sage venerated largely by Dalits in the regions of Punjab, Rajasthan, Maharashtra and Madhya Pradesh – led to massive public protests. Initially, Justice Mishra lashed out at an application moved for preservation of the temple, and threatened that contempt will be taken if demolition was stalled. "Don't speak a word and don't aggravate the issue. You are in for contempt. We will haul up your entire management. We will see what has to be done", Justice Mishra told the temple management.

Later, in the wake of massive country-wide protests by Dalit groups against the demolition, the Centre made a proposal to assign 400 square meters of plot in the same site for reconstruction of the razed-down temple, which was accepted by the bench.

Curiously, the iron fist of Justice Arun Mishra in implementing directions was not visible in the most controversial suo moto case – In Re Matter Of Great Public Importance Touching Upon The Independence Of Judiciary. This matter was taken up in the wake of sexual harassment allegations surfacing against the then CJI Ranjan Gogoi. A special bench headed by Justice Arun Mishra appointed retired former SC judge, Justice A K Patnaik, to probe into the "larger conspiracy" behind the sexual harassment allegations.

During the hearing, Justice Mishra made strong remarks, suggesting that the allegations were a conspiracy by "fixers and plotters".

"We want to send a clear message to influential people with money and political power that they cannot interfere in SC proceedings and there cannot be any match fixing in the judicial system", Justice Mishra said during the hearing.

Though Justice Patnaik reportedly submitted a report after completing the enquiry in September, no action has ensued on it. The case has seemingly gone into a limbo, and the staff who made the allegations has been reinstated into service with back wages. It is disquieting that Justice Mishra did not continue the initial zeal – the case was first heard on an extraordinary sitting on a Saturday, followed by day-to-day hearings - despite it being a matter "of great public importance touching upon the independence of judiciary".

Final comments

Justice Mishra was a highly industrious and productive judge, having contributed several noteworthy judgments in wide-ranging fields of law( he has authored around 132 judgments). Many of his judgments are in accord with the traditional role of the judiciary as an interpreter of laws to unravel the true legislative intent (For eg : judgments on anticipatory bail, Section 6 of Hindu Succession Act, co-operative banks and SARFAESI, time limit of filing version under Consumer Protection Act, District judge recruitment, NDPS-drug quantity, AICTE, title on adverse possession etc). Yet, when it comes to matters relating to civil liberties and free speech, the judge has mostly displayed a perfunctory approach. (For eg : the habeas corpus cases from J&K, Prashant Bhushan contempt case, outbursts against social media criticism etc). His pro-executive stance in politically sensitive cases calls for a deeper scrutiny on account of his perceived closeness with the ruling party.

While Justice Mishra demits his office after handing over a mixed bag of verdicts, he also leaves behind several pertinent questions as to what constitutes the appropriate judicial conduct. Answers to such questions are closely tied with the existence of judiciary because it is the conduct of judges - both on and off the bench – which influences the public confidence in the judiciary (as opposed to comments by lawyers/media).

Before ending, it is apposite to refer to a quote from Justice Frankfurter of the US Supreme Court :

"The court's authority…possessed of neither the purse nor the sword…ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements"[2]

(The article was amended after its publication to mention Justice Vishal Mishra as the brother of Justice Arun Mishra, correcting the initial version which mentioned him as the nephew of Justice Arun Mishra)

[1] The Shadow Of Haren Pandya's Case Lies Long Over Justice Arun Mishra, Prem Shankar Jha, 'The Wire', August 30, 2020.

[2] Baker v Carr (1962) US Supreme Court




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