The times when justice Arun Mishra made news

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Supreme Court justice Arun Mishra retired from office on Wednesday, a day before he turned 65. Justice Mishra served as chief justice of the Rajasthan and Calcutta high courts before his elevation to the Supreme Court on July 7, 2014. His six-year stint in the apex court has been marked by a few controversies, including that created by one of his last verdicts , in the Prashant Bhushan contempt matter. Here are some other key examples.

Spat in open court

This happened on January 8, 2016 though it largely went unnoticed.

Justice Mishra was sitting as a puisne judge ( a term used for a judge who is not the presiding judge on the bench) with justice MY Eqbal, who was heading the bench, when they had a disagreement. It stemmed from a hearing of a case argued by senior counsel Salman Khurshid. The case had come up for admission and justice Eqbal wanted to issue notice, but justice Mishra wanted to dismiss it.

When things were at an impasse, justice Eqbal said he had been presiding over the bench for three years. Justice Mishra responded by saying he was not going to back off since he had equal rights as a puisne judge. Lawyers and visitors present in the court room watched the episode play out, one of the rare instances when judges engaged in a verbal exchange in open court.

Medical college corruption case

Two petitions had been filed, seeking the formation of a special investigation team headed by a retired Chief Justice of India to investigate an alleged conspiracy and payment of bribes for procuring a favourable order in a matter pending before the Supreme Court.

A three-judge bench of justices RK Agrawal, Arun Mishra and AM Khanwilkar dismissed both petitions within two weeks. One filed by Supreme Court advocate Kamini Jaiswal was dismissed on November 14, 2017 and the other by NGO Campaign for Judicial Accountability and Reforms (CJAR) on December 1, 2017.

The listing of the two cases stirred a hornet’s nest. The first petition filed by NGO Centre for Public Interest Litigation was initially listed before justice AK Sikri. However another petition was filed and mentioned before the second senior-most judge of the Supreme Court, justice Jasti Chelameswar, since then Chief Justice of India (CJI) Dipak Misra was sitting on a Constitution bench. Justice Chelameswar listed that petition before himself the same day on which it was mentioned. When the case was heard, the bench headed by justice Chelameswar went on to pass an order that the matter should be heard by a bench of the five senior-most judges of the Supreme Court.

In a strange turn of events, CJI Dipak Misra constituted a five-judge bench the same day, and overturned justice Chelameswar’s order, saying only the CJI had the powers to list cases. Subsequently, both petitions were listed before the bench comprising justice Mishra, who dismissed the pleas. The bench imposed costs of Rs 25 lakh on CJAR.

Case seeking a probe into death of judge Loya

Things reached boiling point in the Supreme Court in January 2018 because of the listing of the case surrounding the death of Judge BH Loya, who had been hearing the Sohrabuddin encounter case. Current home minister Amit Shah was one of the persons accused in the case at the time Justice Loya was hearing it although he was subsequently discharged.

Allegations were raised nearly three years later that the death of judge Loya was shrouded in mystery. A petition was filed in the Bombay high court seeking a probe into the death.

But before the Bombay high court could pass any order, another public interest litigation was filed before the Supreme Court in January 2018 by a Maharashtra-based journalist, Bandhuraj Sambhaji Lone, mentioned before then chief justice Dipak Misra, and listed before a bench headed by justice Mishra. Related cases pending before other high courts were also transferred to the Supreme Court.

On the day the matter was due to be heard by justice Mishra, four senior judges of the Supreme Court held the historic press conference alleging bias by the CJI in listing cases affecting the ruling dispensation. When questioned whether listing of the Loya case was the trigger for the press conference, justice Ranjan Gogoi, who was one of the four judges, replied in the affirmative.

Justice Mishra eventually recused himself from the case, which was heard by another bench. But controversy stoked by the press conference and the manner of listing of cases hasn’t quite died down.

Land Acquisition Act

A Constitution bench headed by justice Mishra ruled in March 2020 that land acquisition proceedings initiated under an earlier law, the Land Acquisition Act of 1894 (1894 Act), will not lapse even if compensation was not deposited by the government in court after owners declined to accept the money, as long the compensation has been tendered into the government treasury.

Once the compensation amount is so tendered, the state’s obligation is complete with respect to the payment of compensation, a five-judge Constitution Bench held in a judgment, which was a blow to landowners who had declined to accept compensation, and benefited private companies on whose behalf the government sought to acquire land.

In 2014, a three-judge bench of the Supreme Court comprising justices RM Lodha, Madan Lokur and Kurian Joseph had held that even if the award of compensation has been made under the 1894 act, unless the compensation is paid to the landowners or deposited before the court, the land acquisition will lapse. Deposit of the compensation amount in the treasury will not be sufficient to discharge the obligation, the bench had ruled.

The three-judge bench headed by justice Mishra, in February 2018, delivered a judgment in which it took an opposite view.

This 2018 judgment created a controversy because it held the 2014 ruling to be per incuriam, that is, a judgment delivered ignoring the law. Under established legal principles, if a bench disagrees with the judgment of another bench of equal strength, it should be referred to a larger bench, which was not the case in this matter.

Immediately after the judgment was delivered, similar matters came up before a bench comprising justices Madan Lokur and Kurian Joseph who were on the bench that delivered the 2014 ruling. They took a strong objection to the 2018 judgment. Justice Dipak Misra, who was then the CJI, formed a Constitution bench to settle the issue.

Because the Constitution bench was headed by justice Mishra, there were calls for his recusal which he did not heed.

Two benches, same facts, different views

A bench by headed by justice Mishra, in May 2019, declined to entertain a plea by former Kolkata Police Commissioner Rajeev Kumar, who was seeking protection from arrest in a case related to the Saradha Chit fund fraud. Kumar approached the Supreme Court directly because the courts in West Bengal were shut due to a lawyers’ strike.

The bench headed by justice Mishra noted that the courts in West Bengal had started functioning and Kumar was free to approach any lower forum in West Bengal. “it is open to the petitioner to approach the concerned Court, as the Courts in the State of West Bengal are functioning,” the court noted in its order.

This would have passed off as another routine order but for another ruling passed the same day by another bench headed by justice MR Shah. That bench was also hearing a plea seeking protection from arrest filed by a Bharatiya Janata Party (BJP) leader, Praveen Agrawal who, like Kumar, also pointed out that the courts in West Bengal were not functional due to the lawyers’ strike.

“It is very unfortunate that the strike is going on in all the courts in the state of West Bengal and due to which, ultimate sufferers are the litigants. By such a strike, the entire judicial function cannot be made paralysed and the litigants cannot be allowed to be suffered,” the bench said while granting Agrawal relief.

Thus, two benches of the Supreme Court took diametrically opposite stances on the same day on the factual position of the functioning of courts in West Bengal.

CJI sexual harassment case

Four news portals published reports about allegations of sexual harassment by then CJI Ranjan Gogoi. It was alleged that the victim, a Supreme Court employee, was terminated from service and her husband, a policeman, was suspended from the force after she raised allegations against the top judge.

But what happened after the news was published caused great consternation among the legal fraternity. A three-judge bench headed CJI Gogoi listed a case titled “In Re Matter of Great Public Importance touching upon the independence of judiciary” in open court on a Saturday, rebutted the allegations and vilified the victim.

Justice Gogoi sat on a bench in a case in which he was allegedly involved. One of the two other judges on the bench was justice Mishra, who threw his weight behind Gogoi and expressed his disapproval of the allegations.

However, when the order in that case was uploaded on the Supreme Court website that evening, justice Gogoi’s name was not listed. Instead, it showed the names of only two other judges as being part of the bench – justice Mishra and justice Sanjiv Khanna.

Later, justice Mishra heard the same case sitting in another combination and called for a report from a retired Supreme Court judge, justice AK Patnaik, on allegations that there had been concerted efforts to target the Supreme Court. Justice Patnaik submitted the report in October 2019, but the case has not been heard about since then.

PM Modi a ‘versatile genius’

In February 2020, at an international judicial conference organised by the top court, justice Mishra heaped praise on Prime Minister Narendra Modi.

“The Prime Minister is a versatile genius who thinks globally and acts locally. India is a responsible member of international community under the stewardship of internationally acclaimed visionary prime minister, Shri Narendra Modi,” he said.

The Supreme Court Bar Association (SCBA), which is the body of lawyers practising before the Supreme Court, condemned Mishra’s statements which it said reflected poorly on the independence of the top court and the judiciary.

“The SCBA believes that any such statement reflects poorly on independence of judiciary and so calls upon Hon’ble judges not to make such statements in future nor show any proximity or closeness to the Executive including high functionaries,” the SCBA resolution read.

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