NHRC chairmanship contender Justice Arun Mishra’s legacy

High-powered recommendation committee has reportedly proposed Justice Mishra’s name to lead National Human Rights Commission

Image Courtesy:theleaflet.in

The high-powered recommendation committee has proposed Justice Arun Mishra’s name to head the National Human Rights Commission (NHRC). While a formal announcement is awaited The Hindu has today reported that it is likely that Justice Mishra who retired as a Supreme Court judge on September 2, 2020, will lead the top human rights body of the nation. The last chairperson, Justice HL Dattu retired in December 2020, the acting chairperson is Justice Prafulla Chandra Pant, a former Supreme Court judge.

Justice Arun Mishra’s name was proposed by a selection panel that included Prime Minister Narendra Modi, Home Minister Amit Shah, Deputy Chairman of the Rajya Sabha, Harivansh, Lok Sabha Speaker Om Birla, and the Leader of the Opposition in the Rajya Sabha, Mallikarjun Kharge.

According to news reports, senior Congress leader Kharge had recommended that the NHRC chief be a “representative from either a Dalit, Adivasi or a minority committee,” as many complaints of human rights violations come from these sections, and thus the Commission should have the appropriate representation. The other names that were discussed included former Chief Justice of Jammu and Kashmir High Court Mahesh Mittal Kumar and former Director of Intelligence Bureau, Rajiv Jain, stated news reports.

Justice Mishra’s legal career began in 1978 when he enrolled as a lawyer. He was elected youngest chairperson of Bar Council of India in 1998-99, and was appointed judge of Madhya Pradesh High Court in October 1999. He has served as Chief Justice of Rajasthan High Court and Calcutta High Court as well and was elevated to the Supreme Court on July 7, 2014. His “tenure at the Supreme Court was marked by various controversies, prominent being the Judge Loya case and the Prashant Bhushan contempt of court case” commented the legal portal, Bar and Bench. 

After he retired last year as the second senior most judge at the Supreme Court, Justice Mishra’s legacy has been conservatively defined as a controversial one: he was the chosen Judge for hearing some high-profile matters despite being considered a more ‘junior’ but influential judge. In fact, as far as influence goes, in 2019, Justice Mishra’s brother, Vishal Mishra, an advocate in the Madhya Pradesh High Court, was made a judge of the High Court before he completed 45 years of age, which is the official minimum age for such an appointment under the draft memorandum of procedure (MOP) for judicial appointments.

Justice Mishra is known to have ruled in favour of the government and his presiding over the case of Justice Loya’s death seemed to have triggered a press conference in 2018 in the lawns of Justice Chelameswar’s residence protesting against sensitive matters being posted by Chief Justice Dipak Mishra before “one particular junior judge”.

According to an Indian Express report, the matter pertaining to Judge BH Loya’s death was assigned to a Bench presided over by Justice Mishra (by former CJI Dipak Mishra), ignoring nine other judges senior to him. Judge Loya, a special CBI judge, was hearing the case of the alleged fake encounter of Sohrabuddin Sheikh, his wife and others, that involved the present Home Minister of India as an accused. As Judge Loya’s sudden demise came as a shock, a petition was filed in the top court seeking a probe by an independent agency. Following the press conference, he felt obligated to recuse and this politically sensitive case was later heard by the then CJI, Dipak Misra, and Justices A.M. Khanwilkar and D.Y.Chandrachud.

The case (W.P Civ. 19 of 2018), was then dismissed where the three-judge bench said, “There is no reason to disbelieve the sequence of events leading to the death as narrated by the four judicial officers namely Shrikant Kulkarni, Shriram Modak, R. Rathi and Vijay Kumar Barde and the assertions of Bombay High Court Justices Bhushan Gawai and Sunil Shukre”. It also slammed the petitioners by saying, “The conduct of the petitioners and the intervenors is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process.” Justice B.R. Gavai went on to be elevated to the Supreme Court in 2019.

Here’s a look at some of his other controversial pronouncements at the Supreme Court:

  1. Indore Development Authority, the land acquisition case

In February, 2018, a three-judge bench presided over by Justice Arun Mishra in Indore Development Authority v Shailendra by a 2:1 split decision, set aside a 2014 decision in Pune Municipal Corporation v Harakchand Misirmal Solanki delivered by another three-judge Bench.

In the 2014 decision of Pune Municipal Corporation, the Supreme Court Bench of Justices R.M. Lodha, Madan B. Lokur, Kurian Joseph had held that land acquisition could be declared void under section 24(2) of the Land Acquisition Act if monetary compensation had not been deposited in the bank accounts of the land owners or with the court. The judgment had agreed that money in the government treasury would not be treated as a form of payment to a landowner.

But in 2018, when Justice Mishra took up this case, he disagreed with the 2014 decision, and also went to the length of labelling it per incuriam, i.e., he held that the 2014 judgment was delivered through lack of due regard to the law or the facts. So, the Indore Development case held that paying money into the government treasury will be treated as payment for the land acquisition process even if the payment had not been made to the farmer.

Further, Justice Mishra also ruled that land acquisitions will not lapse just because a land owner refused to accept compensation within the prescribed 5 years. It held that in a scenario wherein compensation had been tendered, but the person refused to accept it, it would amount to discharge of obligation under section 31(1) of the Land Acquisition Act, 1894. 

This created a lot of confusion as most cases between 2014 and 2018 were settled following the Pune Municipal precedent and some cases were also pending. Post Indore Development Authority, a similar land acquisition matter came up before a three-judge bench on February 21, 2018 in Haryana v. GD Goenka Tourism Corporation, where Justices Madan Lokur and Kurian Joseph (who sat on the Pune Municipal Corporation case) raised concerns.

This led to setting up of a constitution bench by the then CJI, Dipak Misra on February 26, 2018 to decide whether and if the 2018 coordinate bench of three judges (with one dissenting opinion) could have overruled the earlier decision of a unanimous three-judge bench in 2014. This judicial interpretation came after the controversial Judge had refused to recuse himself from hearing the case despite a convincing case being made for such a recusal. Ideally Justice Mishra should have recused himself from sitting on this Bench to reconsider a judgment delivered by him but he did not.

According to the judgment, Justice Arun Mishra decided not to recuse in the “interest of the judiciary and the system”. Finally, on March 4, 2020, the five-judge bench overturned Pune Municipal Corporation and held that land acquisition proceedings could not lapse merely due to a failure to pay compensation to landowners. It held that a lapse would only occur if the government failed to take physical possession of the land. J. Arun Mishra’s views were upheld.

  1. 100 Percent Tribal reservation case

In Chebrolu Leela Prasad Rao and Others v State of Andhra Pradesh (2020), he presided over a constitution bench of five judges, and quashed, in a unanimous judgment, a government order followed in Andhra Pradesh and Telangana that provided 100% reservation to Scheduled Tribe candidates out of whom 33.3% was reserved for women for the post of teachers in the schools in the scheduled areas in Andhra Pradesh.

It held that there was “no rhyme or reason” with the State Government to resort to 100% reservation. This judgment led to widespread protests amongst the tribal population that believed that the verdict was against the entire Fifth Schedule of the Constitution that protects tribal interests.

As per some media reports, the government order of 2000 was issued after complete understanding of the situation and thorough comprehension of the situation of teacher absenteeism in the tribal areas. Non tribal teachers have been reluctant to travel extra miles to teach and settle in tribal areas with no facilities and an established language barrier. This hampers the promotion of education in tribal areas of India but the judgment was tone deaf on these issues.

  1. Jammu and Kashmir detention cases  

Post the abrogation of Article 370 withdrawing Kashmir’s special status, several habeas corpus petitions have been filed in the court against alleged illegal detention. In a 2020 letter written by the Executive Committee members of the Jammu & Kashmir High Court Bar Association to the then Chief Justice, they highlighted that more than 600 habeas corpus petitions have been filed before the High Court and not even 1% of such cases have been decided.

Habeas corpus petitions protect a very important right, a right against detention, which is also internationally recognised. Article 5 of the European Convention on Human Rights lays down the Right to liberty and security which includes the right of persons detained to challenge their detention. Justice Mishra dealt with cases pertaining to the alleged detention of Jammu and Kashmir leaders like Omar Abdullah, Mehbooba Mufti and Saifuddin Soz but showed a lax attitude in dealing with the matters on an urgent basis.

According to a LiveLaw report, when a habeas corpus petition was filed by Omar Abdullah’s sister against his detention in February 2020, Justice Mishra adjourned the matter for two weeks and was quoted saying, “if the sister could wait for such a long period (one year), then 15 days won’t make a difference”.

Congress leader and former Union Minister Professor Saifuddin Soz’s detention case was closed by Justice Mishra after accepting the central government’s claims that he isn’t under detention. Soon after, media reports surfaced showing Soz under house arrest.

  1. Haren Pandya Murder case

Justice Arun Mishra was assigned the crucial Haren Pandya murder case, in which the Bench comprising him and Justice Vineet Saran, reversed the acquittal of the accused persons by the Gujarat High Court which held that the CBI had botched up the investigation. These 12 people were implicated by Gujarat police in the murder of former Home Minister, Haren Pandya.

Justice Mishra believed the CBI’s version that the motive to kill “was to spread terror amongst Hindus. It was part of an international conspiracy. Mr. Haren Pandya was a BJP leader who earlier held the post of Home Minister. He had played an active role in post-Godhra riots at Ahmedabad.” (Cri. Appeal No. 140-151 of 2012)

The judgment was heavily criticised for ignoring inconsistencies and relying on only one sole eye witness to reverse the acquittals. It declined to order further investigation or re-investigation and said that, “The petition (appeal against conviction) is not maintainable and has been filed with an oblique motive.”

  1. Prashant Bhushan contempt case

Free speech is arguably one of the most important fundamental and human rights in a democracy, but it has also remained one of the most controversial rights over the past few years with several judicial interpretations.

Human rights lawyer Prashant Bhushan was slapped with contempt charges after he tweeted against the then CJI Bobde, insinuating that he was enjoying joy rides on an expensive motorcycle while the Supreme Court was in lockdown. The Supreme Court held him in contempt and said that his tweet was a scandalous and malicious statement.

The judgment by the Arun Mishra Bench did not only neglect the right to free speech but also dismissed legal precedents. The plea against Bhushan was filed by one Mehek Maheswari, who initiated the contempt proceedings without securing the mandatory consent of the attorney general under section 15 of the Contempt of courts Act, 1971, and the administrative order which converted it as a suo motu petition.

This was against the established precedent of Biman Basu case of 2010, where the top court held that the contempt proceedings taken by the Calcutta High Court is not maintainable because first, the mandatory consent of the attorney general was not taken and second, the original contempt petition did not pray for the high court to take suo motu action against the appellant.

  1. Eviction of slum and tribal dwellers

On August 31, 2020, a three-judge bench of the Supreme Court, unsurprisingly headed by Justice Arun Mishra ordered the removal of nearly 48,000 slum dwellings around the 140-km of railway tracks in Delhi within three months with no “interference”, political or otherwise. (MC Mehta vs Union of India 1985).

This was in direct contravention of the landmark judgment in Oliga Tellis v. Bombay Municipal Corporation (1985) that held that the right to shelter and livelihood is a facet of Article 21 of the Indian Constitution. The judgment in Olga Tellis was delivered by a five-judge bench, which the three-judge should have ought to follow but did not. In addition to this, the order did not provide details of alternative rehabilitation, etc and was passed in the middle of a pandemic against the most disadvantaged.

After J Mishra’s retirement, the appeal against his order was taken up in the SC and the central government had assured that coercive action won’t be taken against the slum clusters, reported The Hindu.

Back in February 2019, he had also ordered for the eviction of tribals and forest dwellers whose claims over land were rejected under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights Act), 2006. But within two weeks this was stayed by a Bench consisting of the Judge himself after dozens of countrywide protests against the ill-thought-out judgement and sharp criticism. Sokalo Gond, Nevada Rana, All India Union of Forest Working Peoples and CJP have filed a substantive Intervention Application against the SC order of Evictions and pointing out how evictions are statutorily incompatible with the Forest Rights Act of 2006.

  1. Bhima Koregaon-Elgar Parishad cases

When one of the accused Gautam Navlakha, a senior journalist and activist moved the Delhi High Court for bail amid Covid-19, (Bail App 986 of 2020), it noted that the NIA acted in “unseemly haste” to move Gautam out of the jurisdiction of the Delhi High Court while it was considering his bail application. The exact wordings of the order dated May 27, 2020 are reproduced below:

“While ordinarily this court would not see too much cause for hurry in this case, in view of the inexplicable, frantic hurry shown by the NIA in moving the applicant from Delhi to Mumbai while this matter was pending and the NIA had itself sought time to file status report, this court does get a sense that all proceedings in this jurisdiction would be rendered utterly infructuous if an element of urgency is not brought to bear on the present proceedings. Prima-facie it appears that while on the last date, this court had granted adequate time to the NIA to file its status report in response to the interim bail plea; and while the NIA has filed an affidavit opposing that plea, the NIA has acted in unseemly haste to instead remove the applicant out of the very jurisdiction of this court ; and, if the applicant is right, without even informing the Special Judge (NIA), Mumbai or the Special Judge (NIA), Delhi of the pendency of the present proceedings.”

The NIA then moved the top court. It was none less than Justice Mishra who heard the matter (Cri Appeal 471 of 2020), and predictably, set aside this High Court order, and directed for the expunging of remarks made by the High Court against the NIA.


SC directs 48,000 shanties to be razed along railways track in Delhi
Prashant Bhushan contempt case: The judgment behind the Re. 1 penalty
SC decision quashing ST reservation reflects Manuwadi mindset: Review petition 
Re-investigate Judge Loya’s death: Sharad Pawar
Even without an investigation, Supreme Court concludes that Judge Loya’s death was natural 



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