On May 10, 2019, a resolution of the Supreme Court collegium consisting of the then three most senior judges – Chief Justice Ranjan Gogoi, Justices SA Bobde and NV Ramana – accepted a recommendation of the collegium of Madhya Pradesh High Court to elevate advocate Vishal Mishra to the bench.

In all, the High Court collegium had recommended names of five advocates for elevation. The Supreme Court collegium cleared only two them – Vishal Mishra and Vishal Dhagat.

The elevation of Vishal Mishra raised eyebrows. When the Madhya Pradesh High Court recommended his name, he had not attained the age of 45, the minimum age for appointment as a High Court judge as per the memorandum of procedures for judicial appointments. This concern was dismissed by the Supreme Court collegium in one sentence: “As far as age factor of Shri Vishal Mishra is concerned, the Collegium is fully satisfied with the justification given by the High Court Collegium while recommending his name.”

Vishal Mishra is the brother of Supreme Court judge Arun Mishra, who attains superannuation on Wednesday, September 2.

On April 20, 2019, Arun Mishra had sat on an infamous bench along with Gogoi in what will go down in history as one of the most embarrassing moments for the Supreme Court.

After a woman employee of the court wrote letters to 22 judges accusing Gogoi of sexually harassing her and then going after her family, Gogoi, on a Saturday morning, called an emergency hearing, saying that the matter was important for the independence of the judiciary. He claimed that the woman was part of a wider conspiracy to bring him down. However, the order that day following the proceedings did not carry Gogoi’s name. It had only the names of the other two judges, one of whom was Arun Mishra.

Days later, Mishra would head a bench that studied the allegations made by a lawyer, who said he had evidence that powerful forces were trying to manipulate the court. Mishra’s bench ordered for the formation of a committee headed by former Supreme Court judge AK Patnaik to investigate the alleged conspiracy. The committee filed its report last October and it is yet to see the light of day.

Elevated to the Supreme Court in July 2014, just over a month after Narendra Modi became Prime Minister, Arun Mishra’s term was marked by consistent controversy. Allegations swirled that he was the “go-to judge” for sensitive political cases, even though at that time he was not one of the senior judges in the court.

As Mishra leaves the Supreme Court, his tenure is being examined thread-bare. But fundamental to all the controversies surrounding his tenure is a systemic problem in the way the Supreme Court functions: the accumulation of power in the office of the Chief Justice, especially in the role as master of the roster. It is this problem that deserves greater public attention.

The Supreme Court. Credit: Sajjad Hussain/AFP

In January 2018, four sitting judges of the Supreme Court held an unprecedented press conference. They questioned the neglect of senior judges when it came to allotting sensitive cases. Implicit in their accusation against Chief Justice Dipak Misra was the allotment of important cases to Mishra.

The immediate provocation was believed to be assignment of the petitions seeking an investigation into the death of Maharashtra judge BH Loya, who died in 2014 while handling the Sohrabuddin fake encounter case in which Union Home Minister Amit Shah was an accused. The petitions were placed before Justice Arun Mishra. But after the controversy broke out, he ordered that the matter be placed before an appropriate bench.

The Loya case came along with a series of politically and commercially sensitive cases that had been assigned to Mishra.

In November 2017, during the tenure of former Chief Justice Dipak Misra, petitions seeking an investigation into what was termed as the “medical colleges scam” led to a face-off between judges that would eventually instigate the 2018 press conference. There were allegations that former High Court judges were trying to fix orders in the apex court, with the Central Bureau of Investigation filing a First Information Report. Dipak Misra’s name featured in the allegations as he had handled several of the cases relating to licences to medical colleges.

A bench led by Justice Chelameswar placed the matter before a bench of five senior-most judges other than Misra, who later hurriedly formed a different five-judge bench, reiterated the powers of the master of the roster to allot cases and overturned the orders of Chelameswar bench. The petitions were eventually placed before a bench with Arun Mishra, which dismissed it.

When an NGO moved a fresh petition on the same matter, the bench dismissed it and imposed a fine of Rs 25 lakh on the petitioner.

But it wasn’t just during the tenure of former Chief Justice Dipak Misra that Arun Mishra came to handle important cases.

During the tenure of former Chief Justice JS Khehar, on January 11, 2017, Justices Arun Mishra and Amitava Roy of the Supreme Court dismissed interim applications seeking an investigation into the Birla-Sahara Papers – a set of documents, emails, spreadsheets, diaries, note­books seized during raids on the Aditya Birla Group and the Sahara Group in 2013.

The diaries confiscated by the investigative agencies included what were considered records of payouts to higher officials and politicians, including an entry of Rs 25 crore to “Gujarat CM”. Narendra Modi was chief minister of Gujarat at that time.

Under Chief Justice SA Bobde, Arun Mishra was tasked with heading the bench that in July initiated a suo motu contempt case against lawyer Prashant Bhushan for two tweets criticising the court and the chief justice. Mishra, however, clarified during the proceedings that the allotment of the case was made by Justice NV Ramana and not Chief Justice Bobde.

Bhushan refused to apologise and put the court in a fix. Eventually, the Mishra-led bench sentenced him to a fine of Re 1 and said if Bhushan failed to pay up, he would be sent to prison for three months and barred from appearing in the Supreme Court for three years.

In 2019, however, Mishra had authored a judgement in which he reiterated the law that disciplinary action against lawyers cannot be initiated in contempt proceedings when there was no charge of professional misconduct.

Though Mishra during the Bhushan proceedings said he had not punished anyone for contempt during his career as a judge, threats of contempt were common in his courtroom. He even threatened to initiate contempt against a senior lawyer for repeating his arguments, which forced senior lawyers to confront Mishra the next day about his behaviour.

But perhaps the most controversial of all the cases he handled was the one pertaining to the land acquisition law. In February 2018, Arun Mishra overturned the interpretation of Section 24 of the 2013 land acquisition law relating to compensation to land owners, despite the law being settled by another bench of the Supreme Court in 2014. Days later, a three-judge bench led by Justice Madan Lokur virtually stayed Mishra’s judgement and referred the matter to a five-judge bench.

After a long delay that saw the matter being posted to benches of different compositions, the case was placed earlier this year before a five-judge bench led by Arun Mishra himself. Despite lawyers arguing vehemently that he should recuse himself from the case, he took an aggressive posture and turned down the pleas. The Centre’s lawyer backed the judge, accusing some people of trying to manipulate the proceedings. The bench delivered its judgement in March 2020.

As far as commercial matters go, in an analysis by Newsclick, it was found that Arun Mishra had handled seven different matters involving the Adani group. On Tuesday, a day before Mishra retired, he ordered discoms based in Rajasthan to pay compensatory tariff to the Adani group.

Mishra was also open in his praise for Prime Minister Modi, drawing flak during an international conference organised by the Supreme Court in February for his comments that Modi was a “versatile genius who thinks globally and acts locally”.

Systemic issues

The list of controversial cases that Arun Mishra handled is a long one, as analysed by The Wire’s V Venkatesan in this ongoing four-part series. But the controversies were not just about an individual judge who was seen as favourable to the executive.

What the tenure of Arun Mishra reflects are serious systemic problems in the Supreme Court.

The foremost of these, as legal commentator Gautam Bhatia had pointed out during the land acquisition law controversy, is the role of the chief justice as the master of the roster and the power that comes with it. That Justice Mishra got to adjudicate over so many sensitive cases means he was preferred by the chief justices to handle them. Like the four judges alluded to in the 2018 press conference without taking Mishra’s name, many of these cases were politically important.

Unless and until the concept of “master of the roster” is overhauled and an objective system that avoids discretion is put in place, controversies with individual judges at their centre will continue.