Arun Mishra — SC judge who backed Bar-Bench cordiality, but was part of bitter confrontations

Justice Arun Mishra, who retires from SC after a 6-year tenure, had frequent run-ins with the Bar, including in the recent Prashant Bhushan contempt case.

Retiring Supreme Court Justice Arun Mishra | Image: ThePrint Team

New Delhi: Justice Arun Mishra has always talked about building a cordial relationship between the Bench and the Bar. As the Supreme Court judge retires Wednesday after an eventful six years in the top court, he may well be remembered most for a bitter confrontation between the two sides in the last days of his tenure.

In the Prashant Bhushan contempt of court case, a bench led by Justice Mishra stressed on the role a lawyer can play to protect the dignity of the institution as well as a judge’s reputation. Dispelling concerns that the court was against free speech, the bench said it was open to fair criticism but will not condone statements that attribute motives to judges.

But that was not the only controversial case Justice Mishra dealt with as a puisne or senior judge — he had frequent run-ins with Bar members that often ended up with warnings from him. He handled significant cases like the Sahara-Birla diaries, the dispute over whether the Chief Justice of India is the ‘master of the roster’ in the Supreme Court, the allegations of sexual harassment against serving CJI Ranjan Gogoi in 2019, the Haren Pandya murder case and the adjusted gross revenue (AGR) matter.

The allocation of such politically sensitive cases to benches either led by him or including him evoked sharp criticism not just from senior lawyers but also from his brother judges.

Controversies over cases marked to Justice Mishra

When the four senior judges of the Supreme Court — J. Chelameswar, Gogoi, Madan B. Lokur and Kurien Joseph — held an unprecedented press conference on 12 January 2018, mounting an open revolt against then-CJI Dipak Misra, Justice Mishra also came under attack from them.

That very morning, Justice Arun Mishra had heard a PIL seeking an independent investigation into the death of judge B.H. Loya, who was hearing the Soharabuddin Sheikh encounter case, in which BJP chief Amit Shah (now Union Home Minister) was an accused (later discharged). One of the four judges at the press conference cited CJI Dipak Misra’s decision to entrust the sensitive matter to a bench led by Justice Arun Mishra, a junior bench, as one of the provocations for their revolt.

At a customary morning tea meeting at the judges’ lounge on 16 January, Justice Mishra took on the four senior judges for ruining his reputation. He expressed his dismay for being targeted and conveyed to them that he was over-burdened with work and continued to discharge his duty sincerely, despite his ill-health.

A day later, on 17 January, Justice Mishra virtually recused himself from the case. Though the judge never indicated it during the brief hearing, the order released later in the evening said the matter be placed before the CJI for its listing before an appropriate bench.

Weeks after the rift between judges became public knowledge, the top court put out a circular on the roster system that was to be followed while marking cases.

However, Justice Mishra never seemed to forget the tag of “junior judge”, and on at least two occasions, was heard asking lawyers not to crowd a “junior judge’s” courtroom.

A year later, as CJI, Gogoi nominated him from among 27 judges to be part of a bench that held an urgent hearing on 20 April 2019, when media reports alleged that Gogoi had committed sexual harassment.

Justice Mishra was fifth in hierarchy by then, and was also picked to head the bench tasked with getting to the root of the alleged conspiracy hatched to frame CJI Gogoi. The matter is still pending in the court and will now be placed before another judge.

In August last year, senior advocate Dushyant Dave wrote to then-CJI Gogoi, asking why cases related to the Adani Group were listed before Justice Mishra during the summer vacations. Dave sought to know the tearing hurry to hear them.

Dave further claimed in interviews that Justice Mishra was close to the ruling BJP and its leaders. The judge never reacted to Dave’s allegations.

Marking of the Sahara-Birla diary case to a bench led by Justice Mishra also drew criticism from Bar members. The petitioner in this case claimed the diary indicated payments by corporate houses to top party functionaries across the political spectrum.

The Sanjiv Bhatt judgment

Son of a former Madhya Pradesh High Court judge, Mishra enrolled as a lawyer in 1978, handling constitutional, civil, industrial and criminal matters. He became a judge of the same high court on 25 October 1999 at the age of 44, and served as chief justice of two high courts — Calcutta and Rajasthan — before being elevated to the Supreme Court on 7 July 2014.

But within a year of his appointment to the Supreme Court, Justice Mishra came under the spotlight when, as a puisne judge on the bench led by the then-CJI H.L. Dattu, he wrote the judgment that dismissed sacked Gujarat IPS officer Sanjiv Bhatt’s petition demanding a fair, credible and independent probe into two FIRs lodged against him by the state.

Delivered on 13 October 2015, the judgment also rejected Bhatt’s plea to make then-BJP president Amit Shah and several others respondents in the case.

Bhatt had moved the top court in 2011, alleging that the Gujarat government, then led by Narendra Modi, had foisted false cases against him in retaliation for making disclosures about Modi and Shah’s alleged complicity in the 2002 riots.

The verdict slammed Bhatt’s allegations, pulling him up for “influencing the proceedings” in the Gujarat riots case in the top court.

Justice Mishra believed in conscience, not recusal 

Justice Mishra never believed in recusals, unless there was a direct conflict of interest in a matter. Hence, his decision to let go of the judge Loya case left many in the legal circle surprised. The judge has had open verbal spats with lawyers over this issue and, yet, he remained firm.

He always cited his own conscience and sense of right and wrong, and argued that if he had even the slightest worry that he would not fairly deal with the case, he would have walked away himself.

In the Sahara-Birla diary case, he had condemned Prashant Bhushan for seeking recusal of his senior brother judge J.S. Khehar (later CJI). Bhushan had asked Justice Khehar to not hear his PIL seeking an inquiry into the alleged corporate-political nexus, because the file related to his elevation as the CJI was pending with the government at the time.

Despite having reservations, Justice Khehar ordered listing the matter before a bench not including him. When the case got listed again, it was before Justice Mishra’s bench. By then, Justice Khehar had taken over as the CJI. The PIL was finally dismissed.

Days later, Bhushan had tweeted a picture of Justice Mishra with Madhya Pradesh Chief Minister Shivraj Singh Chouhan, whose name allegedly figured in the diary.

Justice Mishra’s decision to lead a five-judge bench in a land acquisition matter last year had triggered sharp protest from the lawyers arguing the matter. Advocates had asked for his recusal because his own judgment was in review before this bench, and they felt the judge may not be able to give an impartial opinion in view of his earlier judgment.

During one of the hearings, Mishra warned a senior advocate of contempt and conviction if he did not stop repeating his arguments, provoking the lawyer to shut his files and walk out of the court.

A day later, however, Justice Mishra apologised, after a group of senior lawyers went up to him and complained against his behaviour.

The judge said he would apologise “100 times” with folded hands if his remarks had hurt anybody’s feelings.

Political activity in law circles

His repeated run-ins with the Bar provide contrast to Mishra’s status as a former active politician in law circles — he was elected to the MP Bar Council several times. In 1997, he became the vice-chairman of the Bar Council of India (BCI), the apex disciplinary authority for lawyers and regulator for legal education in the country.

A year later, at the age of 43, he became the youngest chairman of the BCI, and is credited with the expansion of the five-year law course in India, closure of sub-standard law colleges, framing rules on foreign lawyers, and enhancement of medical aid to lawyers.

Justice Mishra’s words of farewell to the legal fraternity at this virtual retirement function Wednesday summed up his love-hate relationship with the Bar: “Sometimes, I have been very harsh in my conduct directly or indirectly. Nobody should feel hurt. If I have hurt anybody then please pardon me, pardon me, pardon me.”