Justice Arun Mishra & The Supreme Court’s Rule Of Whim

05 Sep 2020 0 min read  Share

Justice Arun Mishra’s controversial tenure epitomised the worst tendencies of the current Supreme Court. He never sat alone. All his decisions—the best & the worst—were enabled & approved by fellow judges. We dissect his case history.

Justice Arun Mishra retired from the Supreme Court on 2 September, 2020

Updated: Sep 28, 2020

Bengaluru and New Delhi:
Two days before his retirement from the Supreme Court, a bench headed by Justice Arun Mishra
sentenced Prashant Bhushan for “destablising the very foundation” of the judiciary by posting two tweets. In one of them, Prashant Bhushan said: “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

If Prashant Bhushan’s tweet turns out to be prophetic, then Justice Mishra will figure right alongside these chief justices as their main collaborator.

The Supreme Court has come in for greater scrutiny and criticism in recent years than it possibly has at any other time in its 70 years of existence. These criticisms span a range from concerns about the functioning of the institution as a whole to outcomes in specific cases and the unwillingness to decide uncomfortable cases.

Over the last six years, Justice Mishra has been at the centre of many of these criticisms and controversies. We look back on the tenure of Justice Mishra on the Supreme Court, examine the cases in which he was involved and highlight the systemic concerns about the Court’s functioning, reflected in the controversies surrounding him.

SC Sets Aside Own Rule To Appoint Mishra’s Brother

A lawyer since 1978, Justice Arun Mishra was appointed to the Madhya Pradesh High Court in 1999. After 15 years as a High Court judge and chief justice, he was appointed to the Supreme Court in July 2014.

The collegium recommendation for Justice Mishra’s appointment to the Supreme Court was itself shrouded in controversy. On 6 May 2014, the then collegium recommended the names of four judges for appointment to the Supreme Court, including Justice Mishra and Senior Advocate Gopal Subramanium.

Once the NDA government took over later that month, it accepted the recommendation to appoint three of the judges but returned the recommendation to appoint Gopal Subramanium. This marked perhaps the first instance when the Government of the day rejected a collegium recommendation for a Supreme Court appointment.

The immediate crisis was averted when Subramanium withdrew his consent for appointment. However, since then, the government has continued objecting to recommendations from the collegium, often on extraneous grounds. This has given rise to serious concerns that the government is compromising the independence of the judiciary, an issue that we have written on previously.

The collegium system of appointments has had its fair share of critics. In 2015, the Supreme Court invalidated attempts to change the system of appointment by replacing the collegium with the National Judicial Appointments Commission. However, concerns regarding transparency in the collegium system of appointments, arbitrary selection criteria, and charges of nepotism remain.

Justice Mishra was himself the son of a former high court judge. In 2019, his younger brother, Vishal Mishra was appointed to the Madhya Pradesh High Court by relaxing the requirement that appointees be over 45 years of age. Vishal Mishra was forty four at the time of his appointment. The Supreme Court collegium brushed aside this consideration, saying that “[a]s far as age factor of Shri Vishal Mishra is concerned, the Collegium is fully satisfied with the justification given by the High Court Collegium…”

The resolution did not mention what this justification was and why the age criteria was not a valid consideration in the case of (now) Justice Vishal Mishra when it has been used to filter out otherwise qualified candidates in other cases.

The opacity of the process of appointment, the lack of set criteria or justifications for appointments, and in particular Vishal Mishra’s out of turn appointment, bypassing the age criteria, at a time when his brother was serving on the Supreme Court and was hearing a matter directly implicating then Chief Justice Ranjan Gogoi, who headed the collegium, added to concerns about the possibly nepotistic nature of collegium recommendations.

His Master’s Voice

By the time he was appointed to the Supreme Court, Justice Mishra was not in reckoning to become the chief justice of India. But he became a favourite of many of the Chief Justices he served with, and was assigned many politically sensitive cases:

  • In 2015, by Chief Justice H L Dattu to decide former police officer Sanjiv Bhatt’s plea to form a special investigation team (SIT) to investigate first information reports (FIRs) filed against Bhatt, allegedly for bringing to light the involvement of (then) Gujarat Chief Minister Narendra Modi and other functionaries in the Gujarat riots of 2002 and their aftermath (it was rejected);

  • In 2017, by Chief Justice J S Khehar to decide the Sahara-Birla Diaries case, where Common Cause, an advocacy, moved an application to investigate why the income tax department had not handed over papers recovered during its raids which allegedly indicated the undisclosed payments to then Gujarat Chief Minister Narendra Modi and Madhya Pradesh Chief Minister Shivraj Chauhan (it was rejected); and

  • In 2019, the appeals and petitions in the murder of former Gujarat Home Minister Haren Pandya, where he refused to order a reinvestigation into the case in light of new evidence and imposed a fine of Rs 50,000 on the petitioner, the Centre for Public Interest Litigation, an advocacy, represented by Prashant Bhushan.

Perhaps the most controversial case assigned to Justice Mishra related to the death of Judge B H Loya under mysterious circumstances. On 11 January 2018, two petitions came up for hearing before the Chief Justice’s bench seeking an independent investigation into the matter.

At the time of his death, Judge Loya was presiding over the Sohrabuddin Sheikh fake encounter trial where the then BJP President and now Home Minister Amit Shah was an accused.

Then Chief Justice Dipak Misra directed these petitions to be listed before a bench headed by Justice Mishra the next day. That day, the four senior-most judges of the Supreme Court after the chief justice, called an unprecedented press conference. They alleged that “cases having far reaching consequences for the nation and the institution have been assigned by the chief justice of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment.” The immediate trigger was the assignment of the Judge Loya case to the bench headed by Justice Mishra.

A screen grab from an Amar Ujala video about a Delhi auto driver who used his vehicle to ask a question about Judge B H Loya's sudden death.

In much the same vein as Prashant Bhushan’s ‘contemptuous’ tweet, the judges justified this unprecedented step as necessary to save democracy, stating that “[t]he four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country”. After the furore, the chief justice assigned the matter to his own bench, which went on to reject the plea for independent investigation into the matter.

The judges’ press conference brought to the national forefront the increasing controversy around the chief justice’s master-of-the-roster power to assign cases to specific benches. The exercise of this power has come to define in many ways, the institutional crises facing the Supreme Court. The Supreme Court has permitted no institutional check or accountability on this power (see here and here).

Although chief justices have the same judicial powers as other judges, on the administrative side, they have vast discretionary powers including the power to assign cases to specific benches. This gives the chief justice the power to shape judicial outcomes by strategic case assignment. This is because the outcome of a case very often depends on the judge who is hearing the case, specifically their personal ideology, judicial philosophy, world view, background and experiences.

The master-of-the-roster power becomes even more potent when chief justices use this power to assign cases where they themselves are involved. And perhaps the greatest sign of the confidence that successive chief justices reposed in Justice Mishra was that they repeatedly trusted him to handle such matters. As a result of this favoured status, Justice Mishra’s name has repeatedly figured in controversies around the chief justice’s master-of-the-roster powers.

The Chosen One

The first such flashpoint came in 2017, during the tenure of Chief Justice Dipak Misra. In a case of judicial corruption potentially involving the then chief justice, two petitions were filed in the Supreme Court to constitute a court-monitored SIT.

One of the petitions came up before Justice Chelameswar, who allocated it to a bench consisting of the senior-most judges of the Supreme Court, possibly on the understanding that since the chief justice was involved, he could not allocate the matter on the administrative side.

Chief Justice Misra hurriedly assembled another five-judge bench headed by himself and including Justice Mishra. This bench decided that the power to allocate cases resided with the Chief Justice alone.

The chief justice then assigned the case to a smaller bench, also consisting of Justice Mishra, which dismissed the petition, and imposed costs of Rs 25 lakh on the petitioner, Campaign for Judicial Accountability and Reforms (convened by Prashant Bhushan), for filing a “petition [that] is not only wholly frivolous, but contemptuous, unwarranted, aim[ed] at scandalizing the highest judicial system of the country, without any reasonable basis and filed in an irresponsible manner…”

In his own fall from grace, Chief Justice Gogoi also turned to Justice Mishra. Justice Gogoi’s quick journey from having very serious concerns about Justice Mishra during the judges press conference to reposing confidence in him to handle the sexual harassment charges against Justice Gogoi is revealing.

Prime Minister Narendra Modi with former CJI Ranjan Gogoi at his swearing-in ceremony/PMO

The matter began with the circulation of an affidavit by a Supreme Court registry employee, who made serious allegations of sexual harassment against Chief Justice Gogoi. The chief justice constituted a special bench on a Saturday morning, comprising himself and Justices Mishra and Sanjiv Khanna.

Presiding over the hearing himself, Justice Gogoi used his pulpit to shift the narrative from sexual harassment to blaming the victim for an attack on the judiciary. The matter was self-styled as “In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary.”

After the hearing, an order was issued “leaving it to the wisdom of the media to show restraint” and not to “irreparably damage reputation and negate independence of judiciary”. The order did not make any mention of the allegations of sexual harassment or even mark the presence of the chief justice as a the presiding judge. It was issued in the name of Justices Mishra and Khanna only.

Chief Justice Gogoi further demonstrated his confidence in Justice Mishra by assigning the matter to a bench headed by him. Justice Mishra, joined by Justices Rohinton Nariman and Deepak Gupta, continued to hear the case. With the aid of a timely affidavit by a relatively unknown lawyer, the bench successfully converted a serious and credible sexual harassment case into a conspiracy against the independence of the judiciary, justifying the grand title given to the case at the outset.

Retired Justice A K Patnaik was tasked with conducting an inquiry into the alleged conspiracy. He submitted his report in September 2019 in a sealed cover. There has been no further action by the Justice Mishra-led bench on the report, despite all three judges continuing to be in court long after September 2019. Though an in-house panel comprising three Supreme Court judges cleared Gogoi of any wrong-doing, the employee at the heart of the “conspiracy” has since been reinstated to her previous employment at the Supreme Court.

Delay And Dispatch As Judicial Strategy

If the sexual harassment complaint was an attack on the independence of the judiciary, it is surprising that the case has not been heard after the report on the possible “conspiracy” against the then Chief Justice was submitted nearly a year ago.

Contrast this with the almost unseemly haste of 24 days within which the contempt case against Prashant Bhushan for two tweets was heard and decided.

In the vast crush of cases pending in the Supreme Court, it is easy to justify why specific cases get delayed. However, when matters touching upon the most cherished rights and liberties—such as the repeal of Article 370, the challenge to the Citizenship Amendment Act, the electoral bonds matter, and various habeas corpus petitions—remain in limbo or are delayed to the point of becoming infructuous, while others are listed out of turn, concerns arise that judges use delay as a strategic tool to avoid deciding cases or to fast-track preferred cases.

Justice Mishra has been no stranger to this controversy. Concerns with out-of-turn listing of cases before Justice Mishra was highlighted in a widely circulated letter by senior advocate Dushyant Dave. On 16 August 2019, he addressed a letter to the chief justice and his companion judges, flagging serious concerns with the manner in which four cases involving the Adani Group were listed before Justice Mishra.

In particular, Mr. Dave drew attention to serious deviations from Supreme Court procedures in listing two Adani Group cases before the 2019 summer vacation bench headed by Justice Mishra (Persa Kenta Collieries vs Rajasthan Rajya Vidyut Utpadan Nigam Ltd and Adani Power (Mundra) vs Gujarat Electricity Regulatory Commission).

Adani's thermal power station in Mundra, Gujarat/ADANI POWER

Summer vacation benches are meant to hear only extremely urgent matters and Dave rightly asked why the Adani matters were listed. Dave’s letter also drew attention to two other matters arising from Adani Gas Limited vs Union of India, which ended being decided by a bench headed by Justice Mishra, even though the judges who were hearing the matter earlier continued on the Court.

A Cacophonous Court

The chief justice’s power to assign cases has become salient because the judges of the Supreme Court do not sit together. They hear cases in smaller benches—overwhelmingly comprising two judges, sometimes three, and very rarely five or more. It thus falls on the chief justice to assign cases to these benches.

Though the Court sits in multiple benches, each bench speaks for the Court. This can lead to conflicting decisions by different benches. Scholar Nicholas Robinson categorised the Supreme Court as polyvocal, to capture its tendency to speak simultaneously in multiple voices.

A core element of the Court’s institutional integrity is the judicial discipline in following its own earlier decisions. To minimize conflict, a Supreme Court bench has to follow decisions of a previous bench of the same or larger size, or refer the matter to the Chief Justice of India to constitute a larger bench to examine the issue.

In practice, conflicts between precedents do exist and can have serious consequences for the coherence of legal principles, the timely determination of important legal questions, and resolution of long pending disputes. Justice Mishra’s role in the litigation around the interpretation of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act) demonstrates these concerns.

The LARR Act replaced the Land Acquisition Act of 1894. Section 24 deals with the circumstances in which pending proceedings under the previous law would lapse. The NDA government wanted to limit the circumstances in which such proceedings would lapse. It did not have the numbers in the Rajya Sabha to amend this law. So, it tried the judicial route.

In January 2014, in Pune Municipal Corporation vs Harakchand Misirimal Solanki, a three-judge bench of the Supreme Court headed by Justice Madan Lokur refused to accept the State’s interpretation of section 24. In December 2017, however, in Indore Development Authority vs Shailendra, a two-judge bench headed by Justice Mishra doubted the correctness of Pune Municipal Corporation and asked the Chief Justice to constitute a larger bench.

The Chief Justice constituted a three-judge bench (the same size as Pune Municipal Corporation) to decide the issue. This bench, also headed by Justice Mishra, held that Pune Municipal Corporation was indeed wrongly decided.

Since a three-judge bench cannot overrule the decision of another three-judge bench, Justice Mishra declared that Pune Municipal Corporation was per incuriam —so bad in law that it had no legal effect at all. If Pune Municipal Corporation had no legal effect, it could not bind Justice Mishra at all. But for the doctrine of per incuriam to apply, it would have to be shown that the earlier judgement disregarded statute or precedent and not merely the possibility of a different conclusion, as pointed out by the dissenting judge, Justice M. Shantanagounder.

In such circumstances, was it prudent for one three-judge bench to declare that the decision of another three-judge bench was per incuriam? And which amongst the two conflicting three judge bench decisions would prevail?

To answer this, the chief justice constituted a five-judge bench, which too was assigned to be headed by Justice Mishra. Though strong arguments were made by lawyers in the case for Justice Mishra to recuse himself since he had already taken a position on the central controversy in this case in not one but two instances, Justice Mishra refused. In March, 2020, this five-judge bench upheld the Indore Development Authority interpretation of section 24.

The land acquisition cases again illustrate the danger of having smaller benches to adjudicate on cases with far-reaching consequences, as it allows the predilections of individual judges to enter the rule of law without the temperance and diversity provided by larger benches. The sheer judicial and constitutional impact of an individual judge, such as Justice Mishra, is something that should worry us for the future.

At the same time, the role of the chief justice as master of the roster, in repeatedly assigning these cases to Justice Mishra, when he had already taken a position in this matter, should not be overlooked.

The Constraints Of Law And Process

Justice Mishra’s role in the dispute over the interpretation of section 24 of the LARR Act demonstrates disregard for legal precedent. In a rule-bound system, playing fast and loose with legal rules—both of procedure and substance—can destroy the normative and predictive powers of the law and entrench a rule of whims in the place of the rule of law.

As Anuj Bhuwania has amply demonstrated in his 2016 book, Courting the People, this tendency to disregard inconvenient legal constraints has become a hallmark of recent jurisprudence from the Supreme Court of India. In particular, the present day Court has overturned the logic of public interest litigation (PIL) on its head. PILs were conceived to provide a “last recourse for the oppressed and bewildered”.

By eviscerating legal constraints and procedural safeguards in the pursuit of desired outcomes, the Court’s jurisprudence has ended up disempowering the very groups that PILs were supposed to protect. Justice Mishra’s own judicial output bears testimony to the dangers of such an approach to judicial decision-making.

In February 2019, Justice Mishra headed a bench that passed an order to evict about 1.8 million forest dwellers in the name of wildlife conservation, when the processes under the applicable law for determination of the rights was not complete. The resultant furore caused the Court to back-track and stay this order.

Clearly, the lessons from this episode were lost, since as his parting shot from the bench, Justice Mishra directed the removal, within three months, of 48,000 slum homes along railway tracks.

To ensure that the order was carried out in time, he specifically directed that no court in the country could stay the eviction and that no political interference in the matter would be permitted. The residents of these slums were not represented before the Court and did not have any say in this matter.

Justice Mishra did not even mention the Court’s own precedent, in a landmark 1985 PIL decision, Olga Tellis, where the Court had held that notice before eviction has to be provided, even to unauthorized dwellers on public land, and their statutory rights must be respected. A bar on further proceedings ensures that there remains no forum for such persons to agitate their rights.

The Court was also silent on a 2019 Delhi High Court judgment, also pertaining to railway land, which laid down detailed procedures, including requirements for rehabilitation measures, before such eviction can be carried out.

A peremptory order of such magnitude, having such widespread, devastating consequences, was again passed as imperious fiat, without providing an opportunity—or a forum—for the most affected to be heard. There was no discussion on the rehabilitation of such persons, and the fact that India is reeling under the pandemic was not mentioned, much less considered.

Imperiousness, With Insufficient Judicial Rigour

A similar imperiousness, with scant regard for process, precedent or consequence, was on display in Justice Mishra’s handling of the adjusted gross revenue (AGR) litigation. The case presents a cautionary tale about the dangers of adjudicating polycentric questions without sufficient judicial rigour.

At the heart of the AGR litigation were two issues: a) what constitutes “revenue” for telecom companies? That would in turn determine adjusted gross revenue and license fee payable as a certain percentage of the AGR; and b) how much time did they have to pay these dues? These issues were decided through a long and complicated litigation history involving both the Supreme Court and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). The final order of the TDSAT was largely in favour of the telecom companies.

As against the final order of the TDSAT, some appeals and cross-appeals were filed in the Supreme Court in 2015. These appeals came to be heard in 2019 by a bench headed by Justice Mishra along with Justices Abdul Nazeer and M R Shah. The judgment in the case proceeds on the unsubstantiated assumption that the proceedings by the telecom companies were not bonafide and were initiated only to delay payments. The judgment then goes on to impose penalty and interest on the penalty against the telcos for the period between 2015-19 when the matter was pending appeal in the Supreme Court.

Justice Mishra was outraged that the Department of Telecommunications (DoT) was contemplating recovering AGR dues from the companies over a long duration. He sought to again invoke the Court’s contempt powers for timely collection of dues. Given the large sum involved, the telecom companies (particularly Vodafone) faced a very uncertain future—even liquidation—if the dues were to be paid immediately. In such a case, the DoT would recover a lot less than if it were to collect these dues over a longer duration.

However, the government of India’s application requesting 20 years for recovering AGR dues with detailed sectoral reasons was met with very strong disapproval from Justice Mishra in the first instance. His outrage at what he saw as collusion to frustrate a judgment of the Supreme Court did not play out in the final judgment delivered on 1 September 2020. He finally conceded a 10-year period over which these dues were to be recovered.

Justice Mishra’s approach of justifying his decisions on the basis of his conception of the larger public good, relying on assumptions and assertions, without the backing of empirical evidence, social reality or constitutional principles was also on display in two important constitution bench decisions on reservations in Chebrolu Leela Prasad and Davinder Singh. In Chebrolu Leela Prasad, Justice Mishra claimed that reservations in public employment were meant to be done away with in 10 years. This has no basis in law or fact.

He also determined, without basis, that the purpose of reservation for scheduled tribes was to “uplift” them from their “primitive culture” and bring them to the “mainstream” of Indian society. This civilizing mission of the Indian state would be frustrated if tribals were not taught by non-tribals.

For Justice Mishra, reservations were an exception to equality—a position that has long been rejected in Indian constitutional law. He proceeded on the basis that reservation had to be cut and curtailed, not only to uplift tribal communities, but also to ensure equality for non-tribals.

In Davinder Singh, Justice Mishra said that the benefits of reservation were being cornered by those who do not “deserve” it. He conflated the issues of sub-classification of scheduled castes and the creamy layer debate and held that sub-classification was necessary to exclude those who did not need reservations.

In conflating the two issues, he missed the fundamental point that sub-classification is about an internal priority within the beneficiary group and not about excluding people from reservations altogether like the creamy layer concept.

In both these judgments, Justice Mishra’s attitude towards reservations, rather than legal principles or empirical evidence, shaped his ultimate decision: In Chebrolu Prasad, 100% reservations were not permitted in what are called Schedule-V tribal areas in Andhra Pradesh, and in Davinder Singh, the prohibition on sub-classifications within reservations for SCs and STs needed a re-look. In both these judgments, Justice Mishra articulated a vision of social justice that reflected barely any nuance or complexity.

Justice Mishra’s angst in the AGR litigation came from his belief that the public exchequer was being denied its dues by the telecom companies. His decision to evict lakhs of forest dwellers came from his pursuit of the protection of wildlife. The order for eviction of slum dwellers sought to clean up the city. His reservations judgments were based on a flawed understanding of the purposes of reservation and the nature of constitutional equality.

Whatever the merits or otherwise of each of these goals, the pursuit of outcomes without heeding the constraints of doctrine and process, are a hallmark not only of Justice Mishra’s time on the Court, but of the present day court more broadly, as Bhuwania’s work has shown.

Prashant Bhushan/NATASHA BADHWAR

A Petty Last Act

Despite the many controversies surrounding Justice Mishra, his enduring legacy in public memory is likely to be hauling up Prashant Bhushan for contempt of court.

On 21 July 2020, a Justice Mishra headed bench took suo moto cognizance and initiated criminal contempt proceedings against Prashant Bhushan for two tweets, and Twitter India for carrying them. Within a month, the bench convicted Bhushan of criminal contempt and scandalising the court.

The judgement spoke of iron hands, dignity, authority, national honour, and even the “comity of nations” but entirely disregarded the issue at hand by not engaging with the case presented by the alleged contemnor. Having made up its mind that the tweets constituted contempt, the bench found no reason to engage with factual aspects of the tweets, or with Bhushan’s defence. The Court concluded:

“The tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy. The tweet clearly tends to give an impression, that the Supreme Court, which is a highest constitutional court in the country, has in the last six years played a vital role in destruction of the Indian democracy. There is no manner of doubt, that the tweet tends to shake the public confidence in the institution of judiciary.”

Bhushan was given a token sentence of a Re-1 fine, failing which he would undergo three months simple imprisonment and be debarred from practicing in the Court for three years. Such was the price of a citizen’s liberty and right to free speech in the eyes of the Mishra Court.

An Authoritarian Court

The disregard for inconvenient precedent and procedure betrays a tendency towards governing by whim, wielding coercive power by dint of the Court’s legal authority, rather than the merits of its public reason.

A similar tendency towards ruling by fiat rather than justification is evidenced in the Court’s increasing inability to handle criticism and to conflate criticism with contempt towards the Court.

Asking for an independent Court monitored inquiry in a matter of judicial corruption that potentially touched the Chief Justice’s office resulted in a fine of Rs 25 lakh imposed on the petitioner. An allegation of sexual harassment was treated as an attack upon the independence of the judiciary. Two tweets about the institutional failings of the Court were also deemed to destabilize the foundation of the judiciary.

Justice Mishra’s interactions with the Bar also bore witness to a similar attitude. During the five-judge bench proceedings in the land acquisition case, Justice Mishra was displeased that Senior Advocate Gopal Sankaranarayanan was referencing the bench as “you.” Objecting to his line of arguments (which went against the interpretation that Justice Mishra had taken in the previous two cases on the matter) he threatened to “take contempt against [Sankaranarayanan] and make sure it is seen through".

The Supreme Court Bar Association passed a resolution protesting such behaviour, which other lawyers had also faced. Justice Mishra apologised.

This contempt for an alternative point of view, whether encoded in the law or in a tweet, has defined not just Justice Mishra’s tenure on the bench, but that of the present-day Court. In many instances in the recent past, Supreme Court judges have expressed their disagreement and displeasure about the criticism that has come the Court’s way.

As CJI-designate, Justice Bobde in an interview was of the view that criticism does affect judges and that not all judges were “thick-skinned”. At an event organised by the Madras Bar Association in May 2020, Justice Sanjay Kishan Kaul expressed his concern about the growing intolerance towards the judiciary and felt that the commentary on social media was to be held responsible.

It perhaps surprised many to hear Justice D Y Chandrachud suggesting on 29 August, 2020 that criticism of the judiciary was easy and that for a change it was important to talk about the positives as well. Some of these are unexpected voices and this is perhaps an indication of the extent to which the sentiment on “unfair criticism” is shared among the judges of the Supreme Court.

The impact of this attitude amongst judges on democratic constitutional culture is perhaps seen in the surrender of Twitter India in the Prashant Bhushan contempt case, where it agreed without an express court order, to suspend the tweets. This is the “chilling effect” of the Court’s constant disdain for criticism of free speech, and a resounding vote of no confidence in the court as the sentinel on the qui vive.

The discomfort with criticism assumes worrying proportions when it affects the consideration of cases within the courtroom, such as the treatment meted out to human-right campaigner Harsh Mander by the chief justice, while seeking orders for FIRs against certain BJP leaders for their role in the Delhi riots. Chief Justice Bobde took great umbrage at the alleged contents of a Mander speech, in which he is supposed to have said that he had no faith in the Supreme Court. Despite strong denials by his lawyers, the chief justice insisted that he would not hear Harsh Mander’s case until this matter of his faith in the Supreme Court was cleared up.

The Court in the Dock

In the Indian Express on 3 September, Justice Rekha Sharma, former judge of the Delhi High Court, recounted the many controversies surrounding Justice Mishra, and ended by quoting Oliver Cromwell: “We are done with you.”

Unfortunately, we are not.

It would be an error to view Justice Mishra as a lone judge gone rogue. He never sat alone. All his decisions—the best and the worst of them—were enabled and approved by his fellow judges. Justice Mishra’s tenure epitomized the very worst tendencies and practices of the present day Supreme Court as an institution.

The administrative wing of the Court, controlled by the chief justice, often plays a more crucial role than the judicial wing in how the Court hears and decides cases.This is a case of the tail wagging the dog.

More importantly though, the Supreme Court is losing touch with the democratic ethos of the Indian Constitution. It tends to reject accountability and justification, embraces opacity and repudiates criticism as contempt.

In the judgment convicting Prashant Bhushan for contempt for his tweets, Justice Mishra asserted that the “Indian judiciary is not only one of pillars on which Indian democracy stands but is the central pillar….. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand”.

Whether or not the judiciary is the central pillar of Indian democracy, there can be no cavill that without an independent well-functioning court, Indian democracy will be imperilled. The Court should heed these words of Justice Mishra but not his example.

(Anup Surendranath teaches at National Law University, Delhi. Aparna Chandra teaches at National Law School of India University, Bengaluru, and is a member of the Article 14 editorial board. Suchindran Baskar Narayan practices in the Madras High Court.)