Justice Arun Mishra: A Judge Every Chief Justice Wanted by His Side

Justice Arun Mishra is a Supreme Court judge perhaps every Chief Justice of India wanted by his side.

A man, whose pet phrase ‘Not like this’, could displace the most vociferous of the arguments by some most aggressive lawyers in the Supreme Court while he set down to decide quite a few highly sensitive cases during his tenure.

Justice Mishra’s stint has been marked by a never-seen-before hysteria and spate of controversies involving, as he would often brand himself as, ‘a junior judge’.

CJI RM Lodha

He was elevated to the Supreme Court along with Justice Adarsk K Goel and prominent lawyer Rohinton F Nariman in June 2014 – a month after the BJP-led NDA had come to power at the Centre.

The very event of elevation witnessed a debate since the government had unilaterally segregated the fourth name sent by the Collegium – senior advocate Gopal Subramanium. The then CJI, Justice RM Lodha, criticised the government and said names cannot be unilaterally segregated by the executive in future.

CJI HL Dattu

The first mighty stroke of a pen by Justice Mishra came a year later. He authored a judgment on behalf of himself and then CJI HL Dattu in a petition filed by controversial IPS officer Sanjiv Bhatt.

Bhatt, claiming he was being targeted by Narendra Modi and Amit Shah because he disclosed the duo’s alleged complicity in the Gujarat post-Godhra riots, had asked for an independent investigation into Shah’s role for allegedly trying to scuttle probe into cases of encounter killings. Bhatt also asked for an inquiry into emails of then Gujarat Additional Advocate General Tushar Mehta.

But the judgment not only shattered the credibility of Bhatt, it went on to hold, for the first time in a judicial order, that attempts were made through “politics and activism” to influence the proceedings on Gujarat riots in the top court.

This was also the first time when Justice Mishra talked about attempts to “exert pressure by the groups and opinion-makers in Delhi” on the top court as his judgment emphasised Bhatt was in active touch with leaders of rival political party, NGOs, their lawyers tried to play media card and was being tutored by NGOs.

CJI TS Thakur and CJI JS Khehar

NGO Common Cause had sought criminal investigations into the alleged recovery of various documents by CBI and Income Tax during raids at offices of Birla and Sahara. These documents purportedly reflected payments to various politicians, including Narendra Modi, during his time as Gujarat Chief Minister.

Then Congress President Rahul Gandhi and Delhi Chief Minister Arvind Kejriwal had alleged that Sahara got immunity from prosecution by the Income Tax Settlement Commission in order to screen beneficiaries of the illegal pay-offs. It was CJI Thakur who had allocated the Sahara-Birla diary case to a bench of Justices JS Khehar and Arun Mishra.

After this bench questioned the insufficient evidence in two hearings, the petition by NGO Common Cause raised the issue of pending appointment of Justice Khehar as the next CJI, indirectly asking for his recusal.

On January 3, 2017, Justice Thakur demitted office and since Justice Khehar did not want to hear the matter further after the contentions in the past, the case went to Justice Mishra.

On January 11, 2017, Justice Mishra, after a day-long hearing, declined to order a probe based on entries of alleged pay-offs. The bench stated that democracy will be hampered if investigations are ordered against Constitutional functionaries on the basis of what it called “loose and inadmissible” documents, and refused to order investigations.

As a CJI, Justice Thakur had also assigned to the bench of Justices Khehar and Mishra the appeal against acquittal of Bollywood actor Salman Khan in the hit-and-run case. Notices were issued in July 2016 and the matter is yet to be heard again.

CJI Dipak Misra

In November 2017, Justice Mishra’s authority as the “master of roster” faced a challenge when a bench headed by Justice J Chelameswar passed a judicial order that the medical admissions scam case will be heard by the ‘first five judges’ of the Supreme Court.

A hurriedly constituted Constitution Bench had Justice Mishra sitting next to the then CJI. Justice Mishra did all the talking on the bench before declaring Justice Chelameswar’s order as null and void, and asserting the CJI as the master of the roster.

This case was then placed before Justice Mishra by an administrative order and the plea for an investigation was junked.

In December 2017, another PIL relating to medical admission scam went to Justice Mishra’s bench. This time, NGO CJAR, was also slapped with a penalty of Rs 25 lakh. Even before the hullabaloo over this could slow down, another controversy erupted.

Four senior judges went public against assignment of politically sensitive cases to a “select” bench, and held the unprecedented press conference in January 2018.

In that interaction, Justice Ranjan Gogoi even nodded to a question if assignment of Judge BH Loya’s death case before Justice Mishra was the trigger.

There was a clamour inside the court and across the political spectrum to have an independent probe into death of Loya, who was once hearing the Sohrabuddin Sheikh encounter killing case that named Amit Shah as an accused.

Upon an administrative order of the CJI, this case was assigned to Justice Arun Mishra, who was tenth in seniority at that time.

After the rebellion by the four judges, Justice Mishra chose to withdraw from the case. He requested the CJI to give it to a different bench.

Subsequently, CJI Misra himself heard this matter along with Justices AM Khanwilkar and DY Chandrachud, and rejected the plea for an investigation into Loya’s death.

However, there were more occasions to come during CJI Misra’s tenure when Justice Mishra had to decide hotly contested matters relating to CJI’s authority.

In May 2018, Congress led a petition on impeachment of CJI Misra, who then constituted a five-judge bench to hear this. This bench also included Justice Mishra. The party opted to withdraw the petition after its counsel Kapil Sibal’s request for a disclosure on who constituted this bench was shot down.

CJI Ranjan Gogoi

Justice Gogoi was one of the four judges who had openly criticised the practise of putting sensitive cases and important matters before a particular judge. But Justice Mishra’s role was only to grow in CJI Gogoi’s tenure.

When sexual harassment accusations hit the CJI, he sat on a Saturday in a special bench ¬¬¬¬– next to him was Justice Mishra. Justice Gogoi defended himself, called allegations malicious and initiated suo motu proceedings, only to post this matter to a bench headed by Justice Mishra in future.

Justice Mishra then decided to look into the larger conspiracy and appointed former Supreme Court judge AK Patnaik as the head of this inquiry commission. The report by Justice Patnaik was also submitted before his bench but there were no further proceedings while Justice Gogoi retired in October 2019.

Besides, when Justice Gogoi started heading the five-judge bench in Ayodhya case, it was Justice Mishra who was made to head number of Constitution Bench cases, including land acquisition, reservation for tribals and daughters’ coparcenary rights.

CJI SA Bobde

When Prashant Bhushan tweeted against CJI Bobde sitting on a Rs 50 lakh Harley Davidson, suo motu contempt proceedings were initiated against the activist-lawyer.

Justice Arun Mishra headed this bench, and his first order in the matter recorded that the case was first placed on the administrative side following which it was decided to adjudicate this on the judicial side.

On the administrative side, as has been ruled by a Constitution Bench that included himself, it is only the CJI who can pass orders to assign matters to a particular bench.

Not just this, another 2009 criminal contempt case against Prashant Bhushan that was last heard in 2012, got revived and placed before Justice Mishra. Bhushan now had two contempt cases being heard back to back.

Justice Mishra decided the suo motu case of 2020 by sentencing the lawyer to a token penalty of Re 1 but not before he highlighted how Bhushan sought to influence pending proceedings through opinion-makers in Delhi – something that the judge had noted six years ago while condemning Sanjiv Bhatt.

Justice Mishra will leave a legacy behind that will not be remembered only for his tryst with unending controversies but also for delivering a large number of Constitution Bench judgments that have become a part of legal jurisprudence in India.

Retiring as number three, Justice Mishra worked with seven CJIs since his elevation from the Calcutta High Court in 2014. And in no time, Justice Mishra rose from a ‘junior judge’ to a ‘go-to judge’ for all the CJIs.