Arun Mishra Bids Goodbye To The Apex Court

Justice Arun Mishra retires from the Supreme Court (SC) after a six-year tenure. Many describe him as one of the most controversial judges in the history of India’s top court.

Justice Mishra is the son of Justice H.G. Mishra of the  Madhya Pradesh High Court. He practised constitutional, civil, industrial, service, and criminal law matters. He served as the Vice-Chairman of the Madhya Pradesh State Bar Council and the Bar Council of India.

In 1998, he became the youngest Chairman of the Bar Council of India. During his tenure, the Bar Council decided to shut down evening law colleges and institute the 5-year undergraduate course instead of the 3-year course. Over 200 law colleges were shut down for being sub-standard and a large number of disciplinary cases were decided to maintain the dignity of the profession. The medical aid to lawyers was enhanced. Justice Mishra also drafted and implemented the Foreign Law Degree Recognition Rules, 1997 under the Advocates Act of 1961, the Bar Council of India Employees’ Service Rules, 1996, and rules pertaining to foreign lawyers’ practice in India.

On 25 October, 1999 Justice Mishra was appointed as a Judge of the Madhya Pradesh High Court. During this time, he also served as the Chairman of the Madhya Pradesh State Legal Services Authority. In 2010 Justice Mishra was appointed as the Chief Justice of Rajasthan High Court. On 14 December, 2012 he was appointed as the Chief Justice of the Calcutta High Court.

On 1 January, 2019 Justice Mishra joined the Collegium. He is presently its 4th senior member.

Whether it was his brash interactions with lawyers or the frequency with which important matters were listed before him, the spotlight has constantly shone on Justice Arun Mishra in the recent past.

An outspoken judge, Justice Mishra was never one to mince his words- either orally in Court or in his judgments. While some of his verdicts elicited criticism, others evoked mixed feelings, and a few were lauded.

Here are some of most important judgments passed by Justice Arun Mishra during his five-year tenure as a Supreme Court judge. These cases or matters raises questions on the integrity of the judiciary, and those having a substantial impact on the socio-economic fabric of the country.

The Judgements

Prashant Bhushan contempt cases

On August 14, this year a Bench led by Justice Arun Mishra found Advocate Prashant Bhushan guilty of criminal contempt of court for two tweets criticising the judiciary. On August 31, Bhushan was eventually sentenced to pay a token fine of Rs 1, failing which he would be sent to jail for 3 months and debarred from practising in Supreme Court for three years.

A Bench headed by Justice Mishra also recently revived an 11-year-old contempt case registered against Bhushan on a complaint by Senior Advocate Harish Salve. On August 25, the Court decided to place the larger questions emanating from the 2009 contempt case before an appropriate Bench.

Hindu Daughters have equal Inheritance Rights

On August 11, this year the Court held that daughters would have equal coparcenary rights in Hindu Undivided Family (HUF) properties even if they were born before the 2005 amendment to the Hindu Succession Act, 1956 and regardless of whether their father coparcener had died before the amendment.

In effect, the Bench headed by Justice Mishra put to bed confusion surrounding the 2005 amendment and ruled it would have a retroactive effect in conferring rights on daughters who were alive at the time of the amendment, even if they were born prior to it.

100% reservation for STs in Scheduled Areas

Justice Mishra was part of the Bench that quashed a government order passed by the erstwhile State of Andhra Pradesh allowing for 100% reservation in teaching posts for Scheduled Tribes in scheduled areas. Noting that there was no rhyme or reason for the State government to resort to such reservation, the Bench went on to impose costs of Rs. 5 lakh against the government.

A review petition challenging this judgment was subsequently filed by various organizations and activists, claiming that the verdict curtails the rights of tribal communities and other minorities for adequate and appropriate representation in their own community settings.

Amendments to the SC/ST (Prevention of Atrocities) Act, 1989 to undo dilution upheld

After a Supreme Court judgment in March 2018 effectively “diluted” the provisions of the erstwhile SC/ST (Prevention of Atrocities) Act, amendments were introduced to undo the changes wrought in the law. The Court had ruled in 2018 that prior sanction of an appointing authority was required to prosecute officers who were charged with falling foul of the law.

A Bench of Justices Arun Mishra, Vineet Saran, and Ravindra Bhat later upheld the validity of this amendment that did away with the prior sanction requirement. Earlier, a Bench led by Justice Mishra had also allowed the Centre’s review against the 2018 judgment.

The Land Acquisition Act and refusal to recuse

A batch of petitions concerning the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act, 2013) witnessed high drama after Justice Arun Mishra’s recusal was sought on grounds of intellectual bias. In this case, a Constitution Bench including Justice Mishra was called to settle a conflict between judgments passed by two Benches on the issue. Pertinently, Justice Mishra was part of the three-judge Bench that had already delivered one of the conflicting judgments.

On October 23, 2019, the Constitution Bench headed by Justice Mishra rejected pleas for his recusal. In an elaborate judgment passed in March this year, the Constitution Bench overruled all earlier precedents on the issue and held that that under Section 24(1)(a) of the Land Acquisition Act, in case the award is not made as of January 1, 2014 (date of commencement of the 2013 Act), there will be no lapse of proceedings and the compensation will have to be determined as under the 2013 Act.

Eviction of Forest Dwellers

In a case filed by NGOs including Wildlife First questioning the validity of the Forest Rights Act, 2006 (Act), a Justice Arun Mishra-led Bench passed extensive directions to 21 states for the eviction of Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) from forest land, whose claims under the Forest Rights Act were rejected.

In its February 13, 2019 order, the Court also ordered the Forest Survey of India (FSI) to make a satellite survey and place on record the encroachment positions and the position after eviction. The order was, however, stayed on February 28.

Justice Arun Mishra was part of the Special Bench that assembled on a Saturday to hear a suo motu case registered after sexual harassment allegations against then CJI Ranjan Gogoi by a former court staffer surfaced through media reports. A Court-appointed Committee headed by Justice (retired) AK Patnaik eventually concluded that there was a larger conspiracy to frame CJI Gogoi which requires further inquiry. This Committee is yet to publish its final report in the matter. In the meanwhile, the staffer was reinstated by the Supreme Court in January this year.

CBI crisis and (another) Bhushan contempt case

A politically sensitive case which saw Justice Arun Mishra on the deciding Bench concerned the appointment of M Nageswara Rao as Interim Director of the Central Bureau of Investigation (CBI). He was so appointed after then CBI Director Alok Verma had resigned from the post days after being reinstated. In February 2019, the Court dismissed pleas challenging this appointment. The case saw recusals by three judges before it came before a Bench presided over by Justice Mishra.

Things also took a controversial turn during the pendency of this case, when Attorney General KK Venugopal filed a contempt petition against Prashant Bhushan for his tweets on the case. Whereas the Attorney General later sought to withdraw the petition after noting that Bhushan had acknowledged a mistake in his controversial tweets, the Court opted to keep this matter pending. In between, Bhushan also submitted in open court that he is not willing to unconditionally apologise for seeking Justice Arun Mishra's recusal from hearing the contempt plea.

Impeachment of CJI Dipak Misra

On April 20, 2018, seven opposition parties moved an impeachment motion against then Chief Justice of India Dipak Misra in the Rajya Sabha. The draft motion for impeachment focused on five charges of judicial misconduct against CJI Misra, including the manner in which the medical college bribery case (Prasad Educational Trust) was handled. Other allegations against CJI Misra included that he had acquired land by producing a false affidavit and that he had abused his administrative authority as master of the Supreme Court roster.

Justice Arun Mishra was on the Constitution Bench formed to hear the petition challenging the decision of Rajya Sabha Chairperson Venkaiah Naidu to reject the notice of motion for removal of Chief Justice of India Dipak Misra. However, the petition was withdrawn in May 2018 following a single hearing after the Bench refused to give details of the administrative order constituting the Bench.

The Fodder Scam

Bringing a politically contentious case to a close on May 8, 2017, a Division Bench of Justices Amitava Roy and Arun Mishra overturned a Jharkhand High Court ruling that found that politician Lalu Prasad Yadav could not be tried separately for offences pertaining to the Fodder Scam. Accordingly, the Apex Court held that the politician could be tried for the offence of conspiracy. Despite allowing the CBI’s petition, the Court had some harsh words for the Bureau for the delay in filing the plea, going as far as to state that it failed to “live up to expectations”. Prasad later went on to be convicted by a Special CBI Court for his role in the scam.

Bribery allegations against Sahara and Birla

Justice Arun Mishra, along with Justice Amitava Roy and initially, former Chief Justice of India JS Khehar, constituted the Bench that decided the politically charged Sahara-Birla Bribery case. Following the unearthing of materials that allegedly evidenced the Sahara and Aditya Birla group’s bribery of politicians, NGO Common Cause filed an application in the Supreme Court seeking a Court-monitored probe. Finding that the petitioner’s case was based on “random materials” such as loose sheets and email print outs, the Court rejected the plea. Notably, the case featured quite a few heated exchanges between the Bench and lawyers Prashant and Shanti Bhushan, who appeared for the NGO.

Medical college bribery case and Master of Roster

Two pleas seeking an SIT probe into the medical college scam case/ the Prasad Education Trust case drew a lot of controversy in the Supreme Court in 2017. These cases involved allegations of judges being bribed to obtain favourable verdicts. Both petitions stemmed from an FIR filed by the CBI in which there were allegations of an attempt to influence high public functionaries for settling a case in the Supreme Court. Both pleas were eventually dismissed by a Benches that comprised Justice Mishra.

Both petitioners, Advocate Kamini Jaiswal and NGO, Campaign for Judicial Accountability and Reforms (CJAR), represented by Advocate Prashant Bhushan, were criticised for their conduct, which was termed as contemptuous by the Court. Costs were also imposed on the NGO while dismissing the main and curative petitions filed in the matter. Notably, this was also the case that saw the Supreme Court re-assert prominently that the Chief Justice was the master of the roster.

Protection for Good Samaritans

Justice Mishra authored a judgment giving force to the Ministry of Road Transport and Highways' Good Samaritan Guidelines giving protection to bystanders who assisted motor accident victims from procedural hassles and harassment. The order passed by invoking the Supreme Court’s powers to do ‘complete justice’ under Article 142 of the Constitution, came in response to a PIL filed by the SaveLIFE Foundation.

Gujarat Riots and Sanjiv Bhatt

In another case that invited much controversy, a Division Bench of then Chief Justice HL Dattu and Justice Arun Mishra dismissed a plea by discharged IPS officer Sanjiv Bhatt seeking an independent probe into two FIRs filed by the Gujarat state government against him. Bhatt was represented by Advocate Prashant Bhushan and Senior Advocate Indira Jaising in the matter. Before this, Bhatt had alleged that the present Prime Minister Narendra Modi had given the green light to reprisal against Muslims following the Godhra train fire that killed 37 Hindus. Bhatt is currently in detention in relation to a 22-year-old drug planting case. Last year, the Gujarat High Court sentenced him to life imprisonment in relation to a 1990 custodial death case.

Constitutionality of NCLT and NCLAT

In May 2015, a Constitution Bench of the Supreme Court including Justice Mishra upheld the constitutionality of the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) established by the Companies Act, 2013. The proceedings, termed as a ‘sequel’ to litigation that challenged identical provisions in the earlier Companies Act, reaffirmed the constitutionality of these Tribunals vis-à-vis the Constitutional scheme. The judgment served the Indian Justice system, paving the way for the setting up of a specialised body to adjudicate corporate matters.

A day before his retirement, a Bench headed by Justice Mishra passed a ruling allowing telecommunications companies to pay Adjusted Gross Revenue (AGR) charges over a 10-year period. The Bench laid down this time frame for telecom companies to pay up the AGR dues in line with the Court's October 2019 judgment.

With his retirement, there are four vacancies that need to be filled to achieve full strength. On his last day in court, Justice Mishra sat with Chief Justice of India SA Bobde as per convention. Addressing the audience that logged on in the virtual court to bid him farewell- a departure from the norm, Justice Mishra said:

"Sometimes I have been very harsh in my conduct directly or indirectly. Nobody should feel hurt. Analyse every Judgment and don't colour it this way or that way. If I have hurt anybody then please pardon me, pardon me, pardon me."

Several senior advocates including Attorney General KK Venugopal, Solicitor General Tushar Mehta, and Supreme Court Bar Association President (SCBA) Dushyant Dave and Supreme Court Advocates on Record Association (SCAORA) President Shivaji Jadhav were present.

Senior advocate Mukul Rohatgi wished him a "restful second innings"; Mehta said the judge would be dearly missed, and Venugopal called him the "iron judge of the Supreme Court" "firm and unshakable".

In another departure from convention, on August 30 Justice Mishra declined an invitation extended by the SCBA invitation for the farewell held in his honour "taking into account the severe situation and suffering of the world due to COVID-19 pandemic".

Justice Mishra was part of 97,000 verdicts during his tenure as a high court judge in Calcutta, Rajasthan, and Madhya Pradesh. As an apex court judge, Justice Mishra has been part of 305 judgments. He has sat on benches that have adjudicated on contested and politically sensitive cases.