 to NewsClick. I am Paranjwai Gupta Thakurtha and today we are going to discuss Justice Arun Kumar Mishra who recently retired from the Supreme Court. He retired on the 2nd of September and arguably he was one of the most influential judges of the apex court of India and also one of the most controversial judges. To discuss this subject I'm very happy to welcome Senior Journalist V. Venkatesan. Venkatesan is a consulting editor for the WIRE website. He's recently written a five-part series of articles on Justice Mishra. He was earlier with Frontline magazine. He has three decades of experience as a journalist who's not only reported on politics but particularly has specialized on legal issues and he holds up a degree in law. Thank you very much Venkatesan for giving us your time. My first question is that you know and this is very topical after you wrote your series of articles and your very first article where you sort of introduced the judge and his family you pointed out that like him his younger brother had become a judge at a very young age before he turned 45 in fact and he was approved by the Supreme Court Collegium. At that time of course the Collegium comprised justices Venkatesan Gugwe, S.A. Bob De and V. Ramana and Justice Arun Mishra was fourth in the hierarchy and you said he's not known if he reclused himself from the consultation process of the Collegium. Well Venkatesan in your article you mentioned that in the Facebook profile of Justice Arun Mishra's younger brother Vishal Mishra he had suggested that members of the Gandhinairu family were Muslims. They were presented as Muslims I mean it was also alleged that the Gandhi family hates Hindus and soon after your article appeared this Facebook post was taken down but there were of course pictures were taken I mean there were screenshots. Yes so if you can just tell us a little bit about this particular aspect of Justice Arun Mishra's brother before we discuss him. That's right yeah for the high appointment of High Court judges a smaller Collegium meets smaller Collegium of three senior most judges since Justice Arun Mishra was fourth in the hierarchy he was not supposed to sit in any case but you know the way Collegium operates the allegations of you know give and take has always been there so we don't know whether the three senior most judges of the Collegium wanted to help Justice Arun Mishra or was it entirely based on merit because the Collegium resolution which was uploaded it says that there was some initially some objection about the age issue and the High Court Collegium had reconsidered the whole thing and then they reiterated their recommendation therefore we do not know what exactly was behind that final decision but vegetation that the Facebook page was certainly Justice Vishal Mishra presented it because after you wrote the article everything was taken down but we do not know whether it was already taken down or after because you know what I understood was that you know the screenshot was already taken so I don't know whether it was taken down as a result of my article or before that we do not know because it was 2014 post okay before I ask you to comment on specific judgments delivered by the retired Justice Arun Kumar Mishra because after all he during his tenure in the Supreme Court which started in July 2014 he had authored 132 judgments and he was part of 540 benches so before we pick on some specific judgments if you can give an overview why do you think he became the most influential judge in the Supreme Court handling the most politically sensitive cases yeah so basically he was not a very prolific judge you know there are some prolific judges in the Supreme Court where in the course of six years long tenure they have written quite a lot of judgments not just you know 200 or something so therefore we have to place Justice Arun Mishra somewhere on a moderate scale or in terms of the frequency of judgments authored by him apart from that see how he became an influential judge just despite being a tuna judge in the Supreme Court is an interesting story in itself because when he joined Supreme Court when he was elevated to the Supreme Court from the Calcutta High Court he was earlier Chief Justice of the Calcutta High Court he was elevated after the Modi government came to power in 2014 the first time and when the then Chief Justice was you know elevated him he was part of the collision so in the beginning there was no indication about the likely influence which Justice Arun Mishra would play in in the coming years but the subsequent Chief Justice started reposing a lot of faith in him and started assigning politically sensitive cases as the master of the roster because the Chief Justice also plays a very important role as an administrative head of the Supreme Court as an administrative head of the Supreme Court the Chief Justice assigns the cases determines the roster and he also enjoys considerable amount of discretion in deciding which judge should hear a politically sensitive case so therefore when we see the pattern emerging subsequently we find that the successive Chief Justices have been assigning politically sensitive cases to Justice Arun Mishra and the outcome is has always been in favor of the government so we tend to you know draw a sort of inference that this assignment has also you know been with a pre-determined objective that's right in in fact the title of your third article in the series is as judge Justice Arun Mishra was almost predictable when the state or the government was before but before we come to some of those more specific issues since you mentioned the role of the Chief Justice of India as the master of the roster after all Justice Arun Mishra served under seven Chief Justices of India including the three in the Collegium that recommended his elevation that's right if you will recall the most controversial press conference that took place on the 12th of January 2018 where after the Chief Justice at that time it was Justice Deepak Mishra four of the senior most judges Justice Chela Mishra Justice mother local Korean Joseph and of course Justice Manjum Gokoy who went on to become the Chief Justice they flagged the discretionary manner in which the then Chief Justice of India Justice Deepak Mishra had been allocating cases particularly to Justice Arun Mishra and one of the more controversial cases pertain to the unusual depth of Justice Lawyer BH Lawyer and and you recall that our President Chief President Home Minister Mishra was discharged from the Saurabhuddin Saurabhuddin Sheikh vacant counter case because the Supreme Court relied heavily on statements made by Justice B. R. Kavai who was then a judge of the Bombay High Court and he's now a Supreme Court judge if you can kindly elaborate on these two issues that unprecedented media conference by the four judges in January 2018 and the Judge Lawyer case with Justice Mishra subsequently took up. If you recall the 2018 press conference by the four senior most judges you would find that the issue of the controversy about Justice Arun Mishra being assigned to the lawyer case was not the principal issue which they talked about in the beginning they were talking about their letter to the Chief Justice Deepak Mishra earlier which went unaddressed for a long time though lawyer was a trigger that day they went they all went to meet Justice Deepak Mishra Chief Justice Deepak Mishra and he didn't you know culminate in a satisfactory solution that is why they went ahead with the press conference but it it Justice Gogoi mentioned about lawyer case in answer to a question they themselves did not come out with that but my subsequent interaction with some of the judges who held the press conference they tend to show that lawyer issue was not the trigger because what was the trigger for press conference was that you know certain cases which were assigned to these judges if the if I have four judges were taken away from their cost list all of us are done without notice without discussion and assigned to others so lawyer was not one of them but they were agreed because you know they were about to hear certain politically sensitive cases some of them even part heard so they were removed all of a sudden deleted from their cost list and assigned to others without any reason so they were agreed because of that that was a predominant reason lawyer was also a factor which Justice Gogoi had mentioned at that press conference and subsequently you know what happened is history the lawyer case was removed from Justice Arun Mishra's three-judge bench but it was just it was of course dismissed yeah but after lengthy hearing okay well some some can say you know the the ends were and you know the natural justice was not given due importance all that but it was after a lengthy hearing okay okay when it is one let's talk a little bit about the Sanjeev Bhatt case here we had an office of the Indian police service who had alleged that the then Chief Minister of Gujarat Narendra Modi and Mr. Arun Mishra were present at a meeting on the 27th of February 2002 and he had leaked email messages of Tushar Mehta who was then the additional Advocate General of Gujarat and who's now the Solicitor General of India and Mr. Sanjeev Bhatt is languishing behind bars now could you elaborate on this particular case see basically the present Solicitor General Tushar Mehta and Sanjeev Bhatt were close family friends they used to vacation together so there was lot of interaction so in one of those going out for a vacation Sanjeev Bhatt had chanced upon certain emails of Tushar Mehta and he had took copies of that for later use and then he brought to the knowledge that he has been in touch with the accused and so this amounts to collusion and also the contempt of court because the administration of justice also suffered so all this was brought to the notice of the court in this case and then you know the kind of victimization which Sanjeev Bhatt had to undergo subsequently so all this was brought to the knowledge and again there was a lengthy hearing but the result was the judgment was authored by justice Arun Mishra and so that was the end of it okay Mr. Venkatesh, can we talk a little bit about the Sahara Bidla papers? I have co-authored a book where which deals with- I know I have read that book also you know this started with a petition by Common Cause and I'm a member of the Council of Common Cause, the appointment of the KV Chaudhary who had edited the income tax department then went on to the Central Vigilance Commissioner and who is currently a director on the board of Reliance Industries Limited. The dismissal of the case on the ground that these were lose page and the connection that people sought to draw including by Dushan Dave the senior advocate that you know the papers alleged that money may have gone to Mr. Narendra Modi when he was Chief Minister Kujat roughly 25 crore that money may have gone to Mr. Shivbhatsen Chauhan who was the then Chief Minister of Mother Pradesh and Mr. Dave pointed out that at the wedding reception or the wedding celebrations of Justice Arun Mishra's nephew in Bhopal and in Delhi, Shivbhatsen Chauhan was present. So what are your views on this whole episode? Well see you know these Sahara Diaries, what the petitioner wanted was just a pro. So on the basis of the material which appeared to be prima facie but you know after a lengthy hearing the conclusion was that they were all just loose papers, they don't merit a pro. So one can disagree with that but there was no other alternative and you know how the case was assigned to Justice Arun Mishra's bench that itself kills the story because it was first listed before Justice Keha who later on become the Chief Justice of India. So at that time when he was about to hear it Prashan Bhushan seriously objected because there was a conflict of interest the Prime Minister was sitting on the proposal to elevate him as the Chief Justice of India therefore he should refuse himself and Justice Keha got very angry at that day during the hearing and then finally he agreed to the merits of what Prashan Bhushan had argued and assigned it to the another bench but you know a bench of his own choosing. Ideally you know he subsequently became the Chief Justice but he should have befriended himself from assigning that case to Arun Mishra because there was a conflict of interest even in the very assignment which he did not agree and he went ahead. So that is how it happens you know ultimately the role of the Chief Justice of India and the role of the master of the roaster that is the dividing line is very often blurred and any attempt to reform is always persisted by God. Okay it's interesting I'm going to come back to Prashan Bhushan I'm going to come back to another instance where Justice Arun Mishra refused to recuse himself from hearing a particular case but before that can we talk a little bit about the Harain Pandya murder case because Premshankar Jha writing in The Wire has suggested that Harain Pandya's murder case may have something to do with the manner in which Justice Arun Mishra became very important and influential and we know that just a bench comprising Justice Arun Mishra and beneath Saran Justice beneath Saran they reversed the acquittal of the accused who in the Harain Pandya murder case. Now this again is a politically very very sensitive case. Harain Pandya murder case as Premshankar Jha had pointed out there were a lot of discrepancies which were never sorted out during the investigation. Now another aspect of the whole thing is that whenever lawyer court acquits accused the appellate court does not normally interfere and set aside the acquittal because lawyer courts are in a better position to appreciate evidence so the appellate courts generally do not interfere. In ten of cases the Supreme Court has said no no we don't want to interfere with acquittals because they belong to separate categories in themselves. So here is a case where the high court had acquitted and the case came comes up to the Supreme Court on priority because you know there must be hundreds of cases which are pending for years which have to be listed before the court the appeals by CVI appeals by state but this case was picked up and listed before Justice Haran Mishra as a matter of design or something and then the outcome we all knew. Can we talk a little bit about the medical college private case in which it was alleged that the then Chief Justice of India Justice Deepak Mishra his name came up in that case. Once again we had Justice Haran Mishra saying no this is not a case worth considering would you like to elaborate a little bit about that and after that could you talk a little bit about the sexual harassment case against the former Chief Justice of India Ranjan Gogh. So if you happen to be in the courtroom when this medical college bribery scam was being heard by Justice Haran Mishra you know Prashant Bhushan as the council he was telling the court that look this is the case which requires probe I'm not saying I'm not making any allegations I'm only saying let it be probed so that you know any any element of suspicion which is there can be removed so but the court assumed that you know the very mention of the bird corruption itself is itself can amount to contempt so they said dismiss the whole thing and then they imposed heavy cost on the petitioner so the question is whether even in that case Justice Conville Kerr's presence on the bench was questioned because of conflict of interest because he was part of the original bench he sat with Justice Deepak Mishra and the objection was that he should not hear this case but he refused to refuse because of that on that issue so therefore the and there was a high court judge who was arrested Justice Kudusi and that there was a complaint there was a request for permission I was just pending before the Chief Justice Deepak Mishra so all this was brushed aside and then the petitioners were made to appear as if you know they made something they filed two cases one by Kamini Jaiswal another by the Center for Public Interest litigation so as if it was a professional impropriety the action was taken against them so all this ended you know took the case into an entirely different direction so I feel you know is what this shows is that in the lineup of this politically sensitive cases and the assignment to a particular bench you know you didn't you know support the inference that the Chief Justice Master of the Roaster can always be posh now I mean I think this also became even more evident in the sexual harassment case against Justice Ranjan Gokoy. Absolutely. Have you gone precedent would you like to comment on this case? So one would have expected that even if you just at that time Chief Justice Gokoy if you had been innocent he should not have sat on the same bench which he heard the case on a Saturday he could have laid the other bench to hear the matter and okay he refused himself at the time of the dictation of the order but the fact that he you know he gave a lengthy prelude and about he wanted to exonerate himself and then he asked the colleagues to you know hear it and dictate the order so it doesn't really carry conviction at all so he was at that point of time Justice Gokoy was a what a ridicule by the entire media they wrote editorials saying that the judge should not sit in his own cause but all this went completely unanswered and you know the subsequent events we all know that that former employee of the Supreme Court was exonerated and taken back and reinstated and there was there was no word from the court itself nobody asked the present Chief Justice of India Justice Bob Day was also the member of the three member committee why did this happen how did this happen what does it suggest nobody no journalist asked him and we still haven't got the report that had been correct that not only that report the one which Justice Arun Mishra's bench commission Justice A.K. Patnaay he inquired about the larger conspiracy behind this and he had submitted a report a year back and that report has not seen the light of the day and you know Justice Arun Mishra did the last hearing of that case and specifically instructed the registrar is a written order it is there on the website list the case after the report is submitted why the case was not listed was the registrar not bound by Justice Arun Mishra's order it is interviewing okay let's move on if you can give very very brief comments on four cases that you mentioned four of them one is the appointment of Nageshwar Rao as the Interim Director of the Central Bureau of Education secondly wire versus Jai Amit Shah that case three the abrogation of Article 370 in Jammu and Kashmir and the detention of important political leaders and fourth the Rajasthan case where it was such in pilot had revolted against Chief Minister Ashok Gherot so let's quickly first talk about the appointment of Mr. Nageshwar Rao as an Interim Director of the CPI a brief few brief comments from you on it yeah when this was challenged again Justice Arun Mishra bench concluded that there was nothing wrong in that because you know there was a tweet by Prashant Bhushan which suggested that the minutes of the meeting were not disclosed there was a difference of opinion the selection committee the high-powered selection committee did not approve of this and then the Attorney General for India KK Venugopal he had told the court no Prashant Bhushan was wrong then Prashant Bhushan realized the mistake and admitted the mistake and the contempt action against proposed contempt action against Prashant Bhushan was withdrawn by Attorney General himself and what it shows is that you know that case how it ended up so Justice Arun Mishra said so we should inquire about the larger issue can counsel tweet about the pending cases we should continue to hear this case but nothing happened after that and you because you know the other Consolist General said do not withdraw the case even if Attorney General is forgiving let us continue to hear the case and lay down certain principles for counsel to you know talk about pending cases in the public so it was sought to be enlarged and during the hearing Prashant Bhushan wanted the reclusive of Justice Arun Mishra from hearing this case Justice Arun Mishra actually refused to refuse himself and he promised that he will come out with the detailed reasons for the same which he did not come out so these are you know yeah cases which went out of the radar subsequently what about the case of the wire versus Jaya Mishra and the article written by Rohini saying about so initially initially yeah see initially when these cases were listed before another bench in which just Chandrachud was a member uh just Chandrachud bench wanted some resolution so they wanted the parties to sit across the table and find some solution so when that did not lead to a solution and the case lingered on and subsequently the changes in the meantime the changes just changed and the case got assigned to Justice Arun Mishra and the very first hearing of the case by Justice Arun Mishra Justice Arun Mishra put very uncomfortable questions about you know how could media right side staff and things like that without any provocation so wisely the the practitioners wanted to withdraw the case so that they can find it out in the trial code and not you know get unfavorable orders from Justice Arun Mishra's bench so this is how you know uh cases of uh seminal importance you know the practitioners began to get uh entertained doubts about the outcome and then they withdraw okay that's what happened yeah yeah yeah okay so uh in the case of the uh application of article 370 in Jammu and Kashmir they said I mean we had people like Saifuddin so saying look I mean it is being claimed by the Jammu and Kashmir administration that I'm a free person but no I'm not easy my house has been barricaded on that particular case in the Supreme Court so what happened in Saifuddin's source case was that you know he had Saifuddin's source had traveled a couple of times to Delhi out of Kashmir and his wife who filed the case did not find it very relevant to mention it in the petition so when the case came up the Solicitor General mentioned the instances when Solifuddin's source was allowed to leave Kashmir and visit his family and for his medical checkup etc etc so the court was asking the petitioner why these cases were not mentioned in the petition so they did not find it very relevant because overall he continues to be in detention so a few exceptions here and there for medical reasons or for meeting the sister that should not alter the scenario okay the yeah so that is how we know the at that point of time so he had the petitioners you know persisted with it then this omissions the these were not deliberate omissions but you know the petitioner didn't think it serious enough to mention but the bench would have taken it seriously and then it would have been a outcome would have been against the petitioner so the petition was dismissed and what about the Rajasthan case involving such in pilot and others see Rajasthan case you know the high court had straight the speaker's decision on the disqualification of the rebel MLAs and these people had come to the supreme court for a stay on the high court's stay order right now the question is there were genuine differences whether the high court had the jurisdiction to do so and whether the high court does not have the jurisdiction the supreme court was bound to stop it from going ahead but that is why they went to the supreme court okay but the supreme court refused to interfere so as a result you know in the meantime the the the political crisis unraveled itself and then they passed up together and then as a result it was in a gold storage in the supreme court the case as such okay you know the second part of your article in the wire is titled justice Arun Mishra's social conservatism was a key factor in his neglect of judicial precedence and in that article you cited a number of cases including the one about whether the government has a duty to maintain the lingam at the Mahakaleshwar temple in Ujjain whether there should be restrictions on worship at the temple due to the COVID-19 pandemic interestingly at a time when justice Mishra himself said me I don't want a celebration of his farewell you know after he retired from the supreme court at an event where Dushan Dhave the senior advocate alleged that he was not even allowed to speak and and then we have another judgment about the Kerala case of Rehana Fatima who allowed her child her children to draw on her body and whether this is a case of child pornography or not and of course the the judgment about the interpretation of the Hindu succession act where where in commentators have felt that he has actually reinforced gender stereotypes you cite these examples as instances of justice Arun Mishra's social conservatism would you like to elaborate well this series of decisions are the examples which are given if you take that Ujjain temple case right there close to his retirement he posted an interi murder which is very interesting the entire media missed it this is the first time the supreme court has begun to monitor closely the daily rituals of a temple Hindu temple saying that you should hold the rituals in this particular manner you should get directions from us so all this you know micromanagement of rituals of a temple unheard of completely unheard of in the interi murder so how does this happen then he about about allowing the pilgrims in a jargon temple he says that you know despite this coronavirus and social distancing and all that the ritual should still be allowed he himself doesn't participate in the firewall function because of the threat of coronavirus but he says that the pilgrims should be allowed to visit the temple with all the social distancing precautions in place so how do we interpret this except that you know he has a very deep rooted social conservatism so if you take this what is what is the jargon the what is jargon temple issue as well as these Ujjain temple thing that is a precedent set up by justice Deepak Mishra in the Bujarat case where you know the during the riots the many mosques were vandalized the petitioners wanted to you know they wanted the state to spend on the rebuilding of these demolished structures so the case they lost the case in the high court they came to the supreme court right and the supreme court said no the state is not bound to spend on the spend money on this because it's against the court so that precedent doesn't hold water in this case that's just really surprising and he doesn't even refer to that case as if it doesn't exist so so he ignores judicial precedence and would you like to briefly comment Rehana Fatima child alleged child pornography case and the judgment about the hindu succession act and and the script writing of men and women so in the Fatima case there is there can be two views right so justice Arun Mishra is dedicated to his view personal view but here the issue is not that because it does not even reach the merit stage she is before him for anticipatory bane as the high court had rejected that high court had rejected that because it started considering merits and then he found it abhorrent that how could a anticipatory bane be given to this but justice Arun Mishra himself had authored a very detailed judgment on anticipatory bane yearly this year in which he had laid down clear guidelines so you cannot deny anticipatory bane just because the accused may commit crime in the future right so but this is what he said during the arguments to the council when the council said no she has not violated any law and he said no no we don't want her to commit more crimes so what is not in the order it's mentioned in the arguments and then the dose for anticipatory bane is closed his own precedent is ignored so the question is whether you are having a particular view ethical view moral view on a particular issue but as a judge well he's not uh uh judge expected to overcome his prejudices biases on a particular matter and apply the law strictly as law stands that's the issue okay we'll talk a little bit about the third article that we wrote where he said that he was almost he was always predictable almost predictable where the government was before him or the state was before him and we know that the government is the biggest litigant and we all know that justice Arun Mishra praised prime minister Narendra Modi at a conference where he described him as an internationally acclaimed visionary who thinks globally acts locally now you cite a number of cases one is the transfer of Gautam Naglaka from Delhi to Mumbai by the national investigating agents where he overruled the Delhi High Court judgment justice right okay and in the same case or a related case I should say the Bima Kureha case he rejected the bail application of Anand Deltumne now he's always stood with the central government's view in this and you cite more examples the Mulchan Khairati trust Khairati Ram Trust which run the hospital versus the Union of India about allocation of beds and the case of Jai Kishan Singh whether or not he was a freedom fighter at the age of seven or eight reservation of posts of teachers belonging to the scheduled tribes and of course the the refusal to postpone examinations the NEET the national inability and an entrance test and also the joint entrance examination test almost always it seems Justice Mishra's point position was that of the government of India if you can briefly comment on some of these cases that you highlighted in your so some of these cases may be very minor but what I found was that a pattern was emerged when he was studying these cases when the state was an upland he always ended up favouring the state whatever the issue so the it was easy for the litigants to predict the outcome of the case when the state was the upland but having said that and when when the state was a respondent again there were certain exceptions that's what I was trying to say and some of these exceptions were also controversial so but you know having found all that the last order which he had passed which I had not dealt with it in this five-part series the AGR issue where the center said 20 years he said no 10 years so that that was really an inexplicable part of the whole thing why did he do so because the center if you go by his pattern he should have agreed with 20 years he did not do so and he did not give reasons also I think he decided to mention this because Abhi Basbukh and I we've written about this and as we've also written about the seven judgments that have come in favour of companies in the article the most pertaining to the Rajasthan distribution electricity that's right companies and compensation compensated tariffs where many group company could gain almost like eight thousand floors a brief comment because it seems both in the AGR judgment the adjusted gross revenues as well as the Adani judgments in which the Shindavi had written an open letter and circulated it among all the judges of the Supreme Court and it was public what are your views on these particular judgments pertaining to the Adani group and and and also the the telecom judgment yeah the Adani case as you yourself had pointed out there was a judgment by the two judge bench by Justice Nariman wherein you know it is clearly said that the the the the Adani group cannot could not have you know shook its responsibilities you know so that was ignored completely the final judgment he though he refers to that and then says he doesn't think that the principles lie down in that judgment apply to this case so basically you know the the conclusion is in this capable that you know he has been always you know differential to the views of the state so as far as even this cases are concerned the the AGR case which I have not clearly applied my mind to that because it still seems to be inexplicable so part so maybe some experts could throw more light on that all right one of the more controversial positions that the retired judge Arun Mishra took was in the interpretation of the laws relating land acquisition the 2013 act there were two judgments one pertaining to the Indore Development Authority the other relating to the Pune the Pune Municipal Corporation this is essentially language is acquired and then it lapses and whether if the compensation is paid to the government treasury whether it's adequate or not now at one state Justice Madan Lokur and and Justice Kurian Joseph in in a related case Haryana government versus G.D. Goenka Tourism Corporation have along the verge of alleging judicial propriety but the question the bigger question is how can one judge sorry how can one bench of the Supreme Court set aside the judgment of another bench in the Supreme Court and then this key issue which was a very very important issue was apparently not addressed if you can sort of demystify and explain this judgment for the benefit of the viewers yeah see basically what happened here is that to give a little bit of background the 1894 land acquisition act and the 2013 act which replaced it the 2013 act gives far higher compensation for land acquisition whereas the 1894 act gives this so there are certain norms which bore with this and the one bench ruled that you know the amount is the compensation you know actually be given but even if it is deposited in the treasury then it should have been enough but then another viewer of the view of another bench is that no no it's not enough even if it is deposited in the treasury it doesn't amount to grant of compensation so therefore the acquisition would lapse so there are two conflicting views which needed to be sorted out now the question is should justice Arun Musra have sat in the bench or the constitution bench which heard the matter to sort this confusion now he according to him when he gave the very lengthy judgment refusing reclusion when the petitioner said justice Arun Musra should not sit on the bench because he had earlier given a contradictory view and where the constitution bench is sent to hear the whole matter of fresh the same judge should not hear his own view and decide so that was a very fair point but justice Arun Musra relied on presidents he says here that in the Keswan and the Bharati case you know Keswan and the Bharati recently postulated so he's very much in the news so what happened in that case was 13 judges were on the bench and the majority was 7 because minor pardon the biggest ever bench because after that 13 judges had never sat so it was a 7 into 7 is to 6 decision very narrow decision right so 7 judges were on the majority 6 were in the minority of the 7 judges 2 judges had sat on the Golaknath bench earlier Golaknath bench it was in 1967 so in that case the court had held that the parliament had no power to amend fundamental rights so there also it was a narrow majority it was 11th judge bench it was an arrow majority it was 6 is to 5 so two judges who sat on the Golaknath case also sat on the Keswan and the Bharati case because at that time the doctrine of necessity kicked in what is the doctrine of necessity supreme court at that time consisted of 15 judges 13 of them were on the bench only two judges were left out these two judges were on the verge of their retirement so there is a view that no no even then the two judges who sat on the Golaknath bench should not have sat on the Keswan and the bench and they should have let the two judges sit on the bench extend their tenures technically it's possible even if the judge is about to retire he can still continue to you know if there is an extension given constitution permits that but there's not been so far exercised so at that time it could have been done but nobody objected to justice Sikri who was the Chief Justice at that time who was also sat on the Golaknath bench sitting again in the Keswan at the bench there was no objection as such because the doctrine of necessity was there and people thought that in the land acquisition matter this whole issue about whether one bench can set aside a judgment of another bench and interpreting the law was never addressed yeah because you know then here in the land acquisition indoor development authority case the issue was there both were co-equal bench three judge benches so Arun justice Arun Mishra bench overruling the decision of a previous bench which was also three judge bench uh was a was a tissue because in the justice Arun Mishra bench one judge dissented justice Mohan M. Shartanagoda he dissented and he put down the view that no no previous decision could not be declared per incurium per incurium means not to be followed as a legal principle so he disagreed with the majority judges but even then the majority judges did not agree with him on the need to refer it for consideration by a larger bench but it's only after this issue whole issue became controversial during the hearing by justice Lokore and justice Korean Joseph that the issue got finally referred to the constitution by by the then Chief Justice Department Mishra who had this issue in mind that whether a same bench can you know overrule the decision of a similar bench you know but that issue was not addressed by justice Arun Mishra finally Venkatesh I have two more questions for you uh we're all aware that uh bench headed by justice Arun Mishra had held Prashant Bhushan guilty of contempt of court he was convicted and fined one rupee uh what is also not so well known that in an earlier case pertaining to acquisition of land for the Hyderabad outer ring road justice Arun Mishra had threatened contempt of court against senior advocate Gopal Shankaran Narayanan and subsequently he profusely apologized to the advocate could you recount the circumstances under which this happened uh in the Hyderabad case he did not apologize he apologized only in the later case when the Indore municipal case was being argued uh he was presiding the constitution bench at that point of time Gopal Shankaran Narayanan wanted to make submissions he was stopped so that became an issue with several senior advocates protesting the following day that justice Arun Mishra should not have done like that because the younger advocates would be reluctant to would be deterred from arguing before he behaves in that manner so justice Arun Mishra apologized when several senior advocates had made the protest so the Hyderabad case was a little earlier when this happened Gopal Shankaran Narayanan was threatened with contemporary resisted in making submissions because the CB had found several irregularities and the bench itself had acknowledged that CB is finding in the disorder but subsequently the relief was not forthcoming to the landowners so Gopal Shankaran Narayanan was representing the landowners and he wanted to make submissions regarding that and the bench refused to hear threatening contempt action against him and ultimately he was not heard and the order was delivered without hearing him okay uh my last my last question for you the fifth and final part of your article uh part of the series of articles you wrote for the wire of which your consulting editor has a title in deciding constitutionality of enactments justice Arun Mishra has always deferred to the center you cite a particular case the PNDT act of 1994 PNDT stands for preconception and pre-natal diagnostic techniques prohibition of sex but but you make a fairly strong statement you say justice Arun Mishra's record as a Supreme Court judge shows that he has never needed much convincing about questions of constitutionality where the government of India where the central government has taken a particular view so I'd like you to comment on why you wrote what you did and conclude this interview by recounting why you believe justice Arun Mishra became such an influential and controversial judge of the supreme court of India see one of the legal principles while determining the constitutionality of statutes when someone challenges a constitutional provision the judges generally assume that the impugned provision is constitutional it's called presumption of constitutionality so if the burden is on the petitioner to prove primacy that it affects the fundamental rights then the burden shifts to the state okay so in that sense that is why you know the judges are generally reluctant to grant a state in the beginning of a hearing of a case because they presume that the statutes constitutional the constitutional provision is constitutional because the state the legislature has enacted that after difference to the legislature you know the broad doctrine of separation of powers so unless it is proved that they will they'll be really reluctant to step in so that sense you know justice Arun Mishra was entitled to that view as a judge but the question here is whether when the petitioners pass the primacy test and you know and the burden shifts to a state so even then you find that in most cases the the the constitutionality is decided in favor of the state so that is the pattern which is emerging in the whole thing so I gave two instances of case PIL cases which were listed before justice Arun Mishra and you know subsequently you know the one of them withdrew and another was not heard so I'm saying these are the lucky petitioners in the sense one had questioned the mode of appointment of the election commissioners he the petitioner wanted Baranwal the petitioner wanted Collegium instead of the executive deciding who the commissioner is election commissioner is because it's a very important issue because it it rises the larger question of you know holding free and fair elections which is considered as a basic feature of constitution so a very important case so the case was first deleted from the cost list twice in February in March it was listed it came up but because of lack of time justice Arun Mishra could not hear it so that was in a limbo so we all know about the outcome of the petition filed by Prashant Bhushan Arun Shorri and the end wrong so the the petition was initially listed before Justice Chandrachod and Justice K. N. Joseph and it was later you know deleted from that list and listed before Justice Arun Mishra and Justice Arun Mishra was about to hear it when they said we are withdrawing the petition and the liberty to you know move the appropriate forum so Justice Arun Mishra agreed to that so basically why did they do that they did that because you know if you look at the pattern he was likely to have dismissed both the election commission petition as well as the petition filed by the trial challenging the constitutionality of contempt of court permission you know which enables the state court to criminalize the scandalization of court offense so so you're concluding remarks you know I mean what kind of legacy does Justice Arun Mishra leave behind him I mean I mean we had a former judge Justice Rekha Sharma actually suggesting quoting others of course that well the the point is Justice Arun Mishra never decided any cases alone he was always part of the benches there were other judges so therefore the concern is about the whole character of the supreme court over the years has it undergone a change so that is the concern so the question is not about a single judge the question is even if you take the Prashan Bhushan Kantham matter so the lot of attention has been directed on Justice Arun Mishra but what about other judges who sat at the bench indoor municipality what about other judges who sat at the bench there was no dissent therefore as as the character of the court itself been changing so this is a larger concern which you know we all be concerned about now the question is how such judges get appointed to the court so we have the NJSE judgment which was delivered way back in 2015 and there were two part judicial appointments right that's right so in 2015 they delivered two judgments one was invalidating the NJSE and in December 2015 the constitution bench of five judges delivered unanimously without any dissent about the need for reform of religion so that issue remains unaddressed so what does it say it says we need a secretariat we need to follow lay down the eligibility criteria we need transparency so we need a revised memorandum of procedure revised memorandum procedure has not seen the light of the day so many petitioners have approached the court so we need to revise this case we need to issue a notice of contempt to the center for not revising the memorandum of procedure so what did the chief justices successive chief justices have been saying they have been saying that look this is an administrative issue he will tackle it administratively then what was the need for hearing the NJSE case in the very beginning they could have said it's an administrative issue they heard it delivered a judgment not one but two and the collegium issue remains unaddressed okay thank you so much vegetation for holding forth for speaking in such great detail not only about justice Arun Kumar Mishra who retired on the 2nd of September but a host of other issues all of which pertain to to bigger concerns that citizens have or should have about the working of the higher judiciary in India thank you once again and thank you very much for being with us on NewsClick keep watching NewsClick