“I view with apprehension the attitude of judges”, remarked Lord Atkin in his storied dissent in Liversidge (1941), “who show themselves more executive-minded than the executive”.
Justice Arun Mishra has demitted office, and it is worth evaluating the implications of his tenure on the independence of the judiciary.
As his critics have argued, his tenure may have contributed even more to the already alleged transformation of the Indian Supreme Court into an executive court — or, as Lord Atkin warned against, a court more executive-minded than the executive itself.
Growing deference to the executive
Constitutional democracies are predicated upon a natural and healthy tension between the executive and the judiciary, with the latter serving as a counter-majoritarian check upon the former.
However, the first clear indication in recent years of this basic principle having come under strain was the public adulation by Justice Arun Mishra (appointed as Supreme Court judge on July 7, 2014, after the UPA government had twice blocked his well-deserved elevation) for the Prime Minister, calling him “an internationally acclaimed visionary”, and “a versatile genius who thinks globally and acts locally”.
Justice M.R. Shah who sat on many benches with Justice Mishra too in 2018, immediately after taking over as Chief Justice of Bihar, had called Prime Minister a “model and hero”. True, an overwhelming majority of Indians similarly admire Prime Minister but should a judge say so publicly is the moot question.
To be fair, Justice Mishra’s praises were not unprecedented by any means. It was, in fact, a grim reminder to an earlier time where the Supreme Court bent way over backwards for the executive.
When Indira Gandhi returned to power in 1980, Justice P.N. Bhagwati wrote to her, that “… I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and, above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”
Interestingly, the same Justice Bhagwati in State of Rajasthan (1977) had favoured mass dissolution of nine elected Congress governments by the Janata government by observing that “never in the history of this country has such a clear and unequivocal verdict been given by the people, never a more massive vote of no- confidence in the ruling party”.
It appears that the clock seems to have started to run backwards for the Supreme Court, unlearning the lessons on the need for an independent judiciary acting as a check over the untrammelled powers of the executive.
Justice Ranjan Gogoi’s nomination to Rajya Sabha and his justification of acting as “bridge between Parliament and judiciary” rather than a watchdog over the legislature and government gave further credence to the allegation of an executive court.
That the judiciary is independent from the executive is equally a matter of perception as it is of fact — i.e. it must not only be independent, but in order to inspire confidence, it must also appear to be so.
The government is the biggest litigant — ie in 80 per cent cases — before the courts, and the implications of such praises of the chief executive upon an ordinary citizen’s perception of the top court are axiomatic.
A strained relationship with the Bar
Justice Mishra also leaves behind a legacy of a liberal and frequent use of contempt threats against the Bar. In fact, long before the contempt case against Prashant Bhushan was instituted, the judge threatened contempt action against senior advocate Gopal Sankaranarayanan while the latter was arguing for Justice Mishra’s recusal in the Indore Development Authority Case (2019).
Justice Mishra not only threatened contempt in the midst of the oral arguments, but also promised to “see through” the conviction. On senior lawyers’ objection, he offered dandavat pranam ie prostration in abject apology.
The Indore Development Authority Case (2019) also reignited the debate on recusal by judges when Justice Mishra steadfastly denied multiple pleas seeking his recusal on the ground of him leading a bench which was to re-examine his own earlier opinion passed as part of a smaller bench — this raised a significant perception of bias.
Lord Esher in Allison (1894) observed that the question is not that the judge, in, fact, was biased. It is the “perception” of bias that has to be the guiding factor. The Indian Supreme Court, too, in Ranjit Thakur (1987) held that judge should look at the party’s perception.
The ghost of the judges’ press conference
The year 2018 marked a watershed moment for the Indian Supreme Court when four of its senior-most judges took to the media and alleged through an open press conference, that sensitive cases were being allotted to a select few judges.
The then future CJI Ranjan Gogoi, during the press conference, indicated that the assignment of Judge Loya’s case to Justice Arun Mishra was one of the reasons that forced the judges to go public.
Justice Mishra in Bhushan’s sentence order said that it must be the ‘first and the last occasion that judges had gone to press’ (Para 44).
Justice Mishra was part of 540 benches and delivered as many as 132 judgments, which means he really worked very hard.
Several matters with significant stakes for the central government came to be heard by benches which were led by Justice Mishra — these include, the Rajasthan disqualified MLAs case; the dispute over the control of Delhi government over services; the Karnataka disqualified MLAs case; the CBI director Case; the AGR dues case; Sahara papers; a total of eight cases pertaining to the Adani group.
The last being Adani Power Rajasthan Ltd (2020) delivered last Monday benefitting the Adani Group with Rs 5,000 crore. He delivered a controversial judgment in Haren Pandya (2019) convicting the accused who were acquitted by the Gujarat high court.
Justice Mishra has also held in Davinder Singh (2020) that sub-categorisation of Scheduled Castes is permissible. His judgment in Chebrolu Leela Prasad Rao (2020) quashing 100 per cent ST reservation of primary teachers in ST areas was also seen as diluting the reservation scheme.
The final order was eviction of 48,000 slum clusters. In many cases, Justice Mishra overlooked the earlier precedents. But Justice Mishra’s judgment in Vineeta Sharma (2020) upholding coparcenary rights of Hindu daughters is widely appreciated.
Justice Mishra’s tenure at the Supreme Court would be located in the context of the court’s overtly deferential approach towards the executive, a strained relationship with the Bar, and a continuing lack of clarity in allocation of sensitive cases, all of which seem to have contributed to the tumultuous legacy that he leaves behind.
Faizan Mustafa is a constitutional law expert. Pranav Verma is an LLM student at Cambridge University. The views are personal ...