Justice Arun Kumar Mishra.

[Book Extract] Whither judicial aloofness? What to make of Justice Arun Mishra hearing matters involving his friends in high places

[dropcap]O[/dropcap]n May 7, 1997, a full bench of the Supreme Court adopted a charter of judicial ethics that continues to govern the behaviour of judges inside and outside the courtroom. The Restatement of Values of Judicial Life was ratified by the Chief Justices’ Conference in 1999 and adopted by all High Courts subsequently. Its first clause reads:

“Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.”

The 15 points which follow are partial reiterations of the values enshrined in the first. For instance, Clause 8 of the charter reads: “A judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.” Clause 9 of the charter states: “A judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.”

A couple of breaks from this charter in recent memory are recounted below.



* * *

“An extraordinary event in the history of any nation, and of this institution, the judiciary” was how one of its protagonists, a senior judge, described it.

In fact, he was next in seniority to none but the CJI himself. On the afternoon of January 12, 2018, an impromptu press conference — visibly disorganised — was summoned by the four senior-most judges of the Supreme Court after the CJI — Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph — in an apparent and obvious violation of Clause 9 of the charter. What the Collegium judges told the frenzied gathering of journalists with some lawyers and activists made it clear that they intended to violate Clause 8 of the charter as well.

All was not well within the walls of the Supreme Court, they revealed “with no pleasure”. Hours earlier, they had tried to resolve the dispute with CJI Dipak Misra. Failing in their endeavour, they were speaking out so that it would not be pontificated decades later that the judges of the court had “sold their souls” at a moment when the judicial order was in crisis.

The four judges had stuck their neck out by breaking from precedents about how judges were expected to behave in public. Three of them were up for retirement within the year while Justice Gogoi was at that juncture next in line for the CJI’s chair (the incumbent would pass the age of retirement on October 2, 2018). As per convention, his appointment would have to be endorsed by Justice Misra. Post-retirement appointments, almost a staple for several retired judges of the apex court, also depend entirely on the goodwill of the executive. (In statements to the media, Justices Chelameswar and Joseph said that they would not be seeking employment from the government after retiring.)

In an undated letter circulated after the press briefing that was supposed to have been written two months earlier, the judges had already raised the issue that the CJI was breaking from “well settled and time-honoured conventions” of the court as the “master” of the roster. The CJI, while equal to his fellow judges on judicial matters, holds the privilege of maintaining the roster of cases assigned to the court’s various benches. The four judges pointed out that this was merely a matter of convention, “devised for a disciplined and efficient transaction of business of the court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues”. CJI Misra, they alleged, had been deciding the size and composition of benches allotted to certain cases without heeding the accumulated wisdom of the court’s long history.

This was not a new development. The letter referred to those who had held posts in the recent past and had set off this trend. The judges wrote: “There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment. This must be guarded against at all costs.”

What were the cases the four were referring to and who were the judges empanelled on the benches? The letter pointed out just one instance — the two-member bench which heard arguments in RP Luthra v. Union of India on October 27, 2017, consisting of Justices AK Goel and UU Lalit. The majority verdict of a five-member Constitution bench of the Supreme Court which scrapped the NJAC in 2015 had recommended a new memorandum of procedure (MOP) for appointments to the higher judiciary, within the existing system. The bench’s order in the RP Luthra matter questioned the delay in finalising the MOP. The proposal drawn up by the collegium, the five senior most judges of the court, was yet to be ratified by a full bench of the Supreme Court and the Chief Justices’ Conference. The letter to the CJI that was circulated by the four dissenting judges after making their statement pointed out that these were the only two bodies competent to decide on the new MOP. The two-member bench constituted by the CJI consisting of relatively junior judges not privy to the collegium’s discussions had presumed itself fit to try a case which had already been decided by a larger bench, the judges maintained.

The judges’ press conference unleashed widespread speculation regarding the malaise that, they alleged, had taken hold of the Supreme Court. Verdicts delivered by the highest court of the land became suspect. Were they delivered by a bench constituted, as the four senior-most judges after the CJI put it, as per the “preference” of CJI Misra? In using the discretion accorded to the “master” of the roster, was the CJI overstepping his bounds as merely the first among equals?

Revelations in 2017 on the circumstances surrounding the death of Judge Brijgopal Harkishan Loya, caused a furore. The judicial proceedings in this case were being keenly watched — they could implicate the ruling party’s second-in-command. At the time of his death, Judge Loya had been hearing a petition before a CBI special court related to alleged extra-judicial murders by the Gujarat police of an extortionist named Sohrabuddin Sheikh and a known associate of his, as well as the alleged rape and killing of his wife Kausar Bi. The petitioners pointed towards a sinister role in the whole affair of Amit Shah, the national president of the BJP. During his time as the home minister of Gujarat in Narendra Modi’s Cabinet, Shah was alleged to have been part of a group of politicians and senior police officials that initially patronised Sohrabuddin.

Two separate petitions calling for an investigation into the death of the CBI judge reached the top court. On January 10, 2018, those were clubbed and listed before Court Number 10 with Justices Arun Mishra and Mohan Shantanagoudar on the bench — once again, a two-member bench consisting of relatively younger judges. The press conference by the four dissenting judges was held a couple of days later, in fact, only three hours after a second hearing on the Judge Loya matter had taken place. The letter released by the four collegium judges made no mention of this — the petitions to probe Loya’s death would reach the apex court roughly two months after the letter was written—but when pressed by journalists, Justice Gogoi admitted that the way in which CJI Misra had dealt with the petitions related to Judge Loya’s death was a matter of concern. Pushed further on whether the series of events called for Justice Misra to be impeached, Justice Chelameswar, was visibly circumspect: ‘Let the nation decide. We are nobodies to decide.

The morning after the momentous coming-out of the four judges, a comment in the Chandigarh-based daily Tribune by its editor-in-chief Harish Khare tried to read between the lines of what had been said by the judges.[i] The tremors unleashed by the Modi “wave” in the legislature and the executive had made their way into the judiciary, Khare believed. The references made by the four senior-most judges after the CJI to the RP Luthra order and the allotment of the Judge Loya case could lead to no other conclusion. Khare argued that since the creation of the Indian nation-state, “the executive-judiciary balance” has been determined largely by the “nature of political dominance” enjoyed by the party at the centre. The “new India”, with its insistence on introducing a new normal, was bound to make such a demand on the judiciary as an institution.

Khare argued against harbouring any illusion that judges are saints, or even “sants” (which means ascetics to Sikhs and Hindus). “We do know that they do not live in ashrams (or places of religious retreat) or go on solo meditation retreats in distant monasteries. They are not untouched with current raging passions, furies and the certainties of the day. They all have closets at home. Many, if not all, also have feet of clay. And, though we pretend to not have a system of judges being ‘political appointees’, some judges do have political alignments and leanings and patrons. Institutional pride and prestige compete with individual weaknesses and vulnerabilities. At the highest level of judiciary, the institution wins. So we like to presume.”

Khare wrote: “We presume wrongly. That is the only inference possible from the indictment in the Chelameswar Four charge-sheet. This had not been the first time that judges of the Supreme Court had conflict among themselves over the handling of cases. It had happened earlier in November 2017, when the second-most senior judge (Justice Chelameswar) had passed an order for a matter to be put up before a Constitutional bench which the CJI annulled the very next day and put up the matter before a smaller bench of his own choosing. Only this time round, the allegations had pertained to corruption in the higher judiciary itself.”

* * *

Prasad Education Trust, a trust owned by the Prasad Group, runs engineering and management institutes in Uttar Pradesh. Between June 2016 and May 2017, on two separate occasions the Union ministry of health and family welfare had denied it a licence to continue offering courses in a new medical college set up by the trust, after reviewing reports submitted by the Medical Council of India (MCI). The trust challenged the government’s decision and its plea was heard by the apex court between August and September 2017. Two different benches of the Supreme Court, both headed by CJI Misra and including Justices Roy and AM Khanwilkar, had allowed admissions to continue — first, on August 1, directing the government to reconsider its decision and when denied permission yet again, on August 24, allowing the matter to be sent back to the Allahabad High Court (which had already heard the case). The CJI had been hearing several petitions related to the delisting of “similarly placed” medical colleges by the MCI at the time.

The CBI lodged an FIR on September 19, 2017 against individuals allegedly part of a conspiracy to bribe “senior relevant public functionaries” to get a favourable verdict from the apex court. Raids led to a recovery of Rs 2 crore in cash and the bureau arrested Ishrat Masroor Quddusi, a retired judge of the Odisha High Court, along with officials of the medical college and other middlemen (including a hawala operator). As per the CBI’s FIR registered under the Prevention of Corruption Act, 1988 and the relevant section of the Indian Penal Code (IPC), the arrests were made after the CBI received “reliable information” that the retired judge and representatives from the trust would be handing over large sums of cash to one Biswanath Agrawala, a “private person” based in Bhubaneswar who had claimed “close contact with senior relevant public functionaries” and assured them of his ability to get the matter settled in the court in the trust’s favour. In January 2018, the Wire reported on how tapped phone conversations between the conspirators had led the CBI to make the arrests. The article was withdrawn after a court injunction.

A day before the arrests, a bench comprising CJI Misra, and Justices Khanwilkar and DY Chandrachud, directed that the medical college’s licence for the academic year 2017–18 not be renewed. It also refused to allow the MCI to encash the college’s bank guarantee and allowed courses to continue for students already enrolled in 2016–17. While the Union government had suspended the licence for 2018–19, the bench directed the MCI to carry out fresh inspections within three months. For reasons known only to the Supreme Court, its website did not upload this order till the evening of 21 September, two days after the CBI had registered its FIR.

Two separate petitions were filed before the Supreme Court after these developments. As an attempt to fix a judicial proceeding seemed apparent, the CJAR petitioned for the investigation to be taken over by an SIT under the directions of a retired Chief Justice of the Supreme Court. A similar petition was filed by senior advocate Kamini Jaiswal, alleging that the matter involved “corruption in the very highest echelons of power, including the justice delivery system”. It reasoned that the involvement of an investigative agency under the government’s control, namely the CBI, would compromise the independence of the judiciary. It asked for the matter to be put up before a Constitutional bench of the five senior-most judges of the court. Significantly, the petitioners urged that the bench exclude Chief Justice Misra, on procedural grounds, as he had passed multiple orders on the medical college case as a presiding judge.

The spectacular series of events that unfolded drew much comment; they nevertheless bear repetition. Jaiswal’s petition was put up on an urgent basis on 9 November 2017 before a bench consisting of Justices Chelameswar and S Abdul Nazeer.[ii] While the proceedings were in swing, an administrative official of the court delivered a copy of a circular issued by CJI Misra annulling the bench and posting the matter before another bench presided by himself. However, the bench proceeded to pass an order directing the matter be put up on November 13 before a Constitutional bench consisting of the “first five judges in the order of seniority of this court”.

The order noted: “The FIR contained certain allegations which are disturbing. The allegations pertain to the functioning of this court. On perusal of the FIR which was placed before us in the morning, we thought it necessary and proper to take up the matter immediately.” The petitioner’s arguments (the order explicitly refrains from venturing into what they were) had earned the bench’s attention. But the order was not followed. Instead, the next day, a five-judge bench led by CJI Misra that included Justices Mishra, Roy, Khanwilkar and RK Agrawal took up the case for themselves. The order passed by the bench put aside the previous order and held that “there cannot be any direction to the Chief Justice of India as to who shall be sitting on the bench or who shall take up the matter as that touches the composition of the bench”.

Reasserting the power of the “master” of the roster, the order held: “On the judicial side, he (the CJI) is only the first amongst the equals. But, as far as the roster is concerned, as has been stated by the three-judge bench in Prakash Chand (supra) [State of Rajasthan v. Prakash Chand and others], the Chief Justice is the master of the roster and he alone has the prerogative to constitute the benches of the court and allocate cases to the benches so constituted.”

The hearing itself was a spectacle. The bench appeared to have been convened so hastily that two of the seven chairs initially placed on the dais of the court were removed minutes before the proceedings began — Justices AK Sikri and Ashok Bhushan who had been hearing the matter earlier were no longer part of the new proceedings. Instead, several lawyers unrelated to the proceedings walked into the Court Number One that day. Although only the Supreme Court Bar Association (represented by its president RS Suri) had been attached as a respondent on its request, the bench entertained all submissions related to the subject as well.

Prashant Bhushan, appearing on behalf of CJAR, had previously alleged that the “senior relevant public functionaries” referred to in the CBI’s FIR had been none other than the CJI himself. “The FIR is very clear that there are allegations against the bench of CJI,” he had said. He asked Justices Sikri and Bhushan to not put up the matter before the CJI to avoid a conflict of interest — the CJI would, in effect, be “judge in his own cause”. Once again, he asked for the CJI’s recusal. “Nonsense,” Misra replied. “There is not a word in the FIR about me. You are now liable for contempt.” “So, issue a contempt notice,” Bhushan said. The CJI retorted, “You are not worth it.”

Bhushan eventually stormed out of the courtroom, frustrated that arguments from all and sundry were being entertained while the petitioners themselves were not heard. Amidst the cacophony, advocate Gaurav Bhatia termed Bhushan’s attempt to get the CJI to recuse himself “an attempt to get favourable orders by terrorism”. Bhatia, besides being an honorary secretary of the Supreme Court Bar Association, was a national spokesperson of the BJP. Eventually, the order was passed by the court in the absence of the petitioner’s counsel.

Jaiswal’s petition for an independent investigation into the FIR was dismissed on November 14, 2017. The three-member bench comprising Justices Agrawal, Mishra and Khanwilkar held that the petitioner had indulged in “forum shopping”, that is, attempted to get favourable orders passed by choosing amenable judges, but stopped short of initiating contempt proceedings. CJAR’s petition was dismissed shortly afterwards, on December 1. This time, the bench went a step further and imposed a penalty of ₹25 lakh on the petitioners. The litigants were guilty of “scandalising the highest judicial system of the country”. The penalty was to be paid to the Supreme Court Bar Association Advocate’s Welfare Fund.

The medical college bribery scandal was not the last politically-charged case where the size and composition of benches in highly-publicised cases were questioned. The tussle over the CJI’s discretion as ‘master’ of the roster which was highlighted by the CJAR verdict in November 2017 had been set off a month earlier during the hearing on the MoP in the RP Luthra case and had continued, on the very morning of the press conference by the four judges, when the bench decided to hear the petitions for an independent probe into Justice Loya’s death in January 2018.

The episode culminated in the court declaring a new “subject-wise” roster system based on judges’ specialisations. All PILs and “letter petitions” were to be heard by the CJI, as had been the convention previously. A motion to impeach the CJI raised on April 20, 2018 by 71 MPs in the Rajya Sabha from various Opposition parties, another first in the history of the judiciary, was stopped in its track by the Speaker of the Rajya Sabha (who is the ex officio Vice-President of the country) M Venkaiah Naidu on technical grounds. Naidu reasoned that such a move had a “serious tendency of undermining the independence of judiciary”.

* * *

Justice Arun Kumar Mishra.


It is customary for members of the country’s highest court to have morning tea in the judge’s lounge before the day’s proceedings begin. On January 16, four days after the four judges had made public the discontent brewing within the ranks of the judiciary, the matter came up for discussion among those present at the daily ritual. One of the judges, Arun Mishra, if reports are to be believed, had an outburst of emotion that morning. Complaining that he had been “unfairly” singled out by his fellow judges, Justice Mishra reportedly broke down. “The only thing I have earned in my life is (my) reputation and you (the four collegium judges) have tried to attack it. How do you propose to give it back to me? You should have killed me with a bullet rather than attacking my reputation,” he said. CJI Misra had reached out to comfort him, after which the two retired to the elder judge’s chambers. According to reports, Justice Mishra was irked by the references to him as a “junior” judge and made his displeasure known.

The original two-member bench hearing the Judge Loya case, late in the evening of the day which had begun with this unusual outburst, uploaded an order on the Supreme Court’s website. It directed that the matter be “put up before the appropriate bench” for the next hearing. Justice Mishra would no longer be part of its proceedings. It would be a three-member bench headed by CJI Misra with Justices Khanwilkar and Chandrachud that would dismiss the petitions seeking a probe into the CBI special court judge’s death in April 2018. The judgment was hotly debated — criticised for delivering a “trial court verdict” — without actually holding a trial.

Justice Mishra had begun his career as a judge in the Madhya Pradesh High Court in Jabalpur in October 1999. His father Hargovind Mishra had served on the bench there. His appointment was made permanent two years later. Justice Misra, elder to him by two years, had been serving in the same court since 1997 and would remain there till 2009, leaving to take over as Chief Justice of the Patna High Court.[iii] Justice Mishra was elevated to the top court in July 2014 after being denied promotion on three occasions, while Justice Misra had joined three years prior in October 2011. Justice Mishra has served 15 years in High Courts and is the only judge to have decided over a lakh cases. Had he been elevated without the unusual delay, he would have been in line to be the CJI (as Supreme Court judges must retire at the age of 65). Mishra was among the first three judges to be appointed to the Supreme Court after the Modi government came to power.[iv]

Apart from the Sahara-Birla hearings, Justice Mishra also heard several sensitive petitions including one filed by former Indian Police Service (IPS) officer Sanjiv Bhatt on reopening an investigation into the 2002 pogrom of Muslims in Gujarat when Modi was chief minister. Bhatt said he was present at a meeting of top police officials wherein Modi allegedly instructed those present to look the other way while riots and arson took place for three days. The claim was contested, including by the Supreme Court-appointed SIT which cleared Modi of blame. The verdict authored by Justice Mishra (on a bench that also included the then CJI HL Dattu) trashed Bhatt’s petition in October 2015, claiming that the petitioner had not come with “clean hands”, that is, the petition had been motivated to benefit rival political parties, namely the Congress.

In March 2018, Justice Mishra was also be part of a bench which tapped on the CBI and the ED to wrap up their ongoing investigations into the second-generation (2G) telecom spectrum allocation case and the related Aircel-Maxis case involving “disproportionate assets” held by former Union finance minister Palanappan Chidambaram and his son Karti. The Supreme Court set a six-month-deadline for the investigators. The previous December, a special court presided over by Justice Om Prakash Saini had discharged all politicians accused in the 2G scam including former Union telecom minister Andimuthu Raja and member of the Rajya Sabha Kanimozhi, the daughter of the late Dravidian leader Karunanidhi of the Dravida Munnetra Kazhagam (DMK).

Justice Mishra had also been on all three benches which annulled Justice Chelameswar’s order on the Jaiswal petition (here he had accompanied the CJI) and dismissed both hers and the CJAR’s petitions for an independent investigation into the medical college bribery scam and imposed a penalty on the non-governmental organisation in the second instance. However, these instances by no means should be taken to indicate that overlooking the rule of seniority while assigning benches was CJI Misra’s handiwork. In the case of the Sahara-Birla papers, as also later in the petition regarding Pul’s suicide note, the Judge Loya case, the RP Luthra verdict and the medical college bribery scam, the Supreme Court appeared to have acted in a similar manner. The bench that decided the Sahara-Birla matter in January 2017 had been only the first in this series, set up by Justice Khehar, Misra’s predecessor as CJI.

Justice Khehar had been part of the two-member bench that heard Common Cause’s interim appeal in the Sahara-Birla papers case between November and December 2016. After recusing himself, the circumstances of which have already been recounted, he listed the matter before a bench of Justices Mishra (then 12th in seniority) and Roy (19th) in January 2017. In doing so, Justice Khehar overlooked ten senior benches that were available. The new bench dismissed the Sahara-Birla papers and, later, the petition challenging the appointments to the CVC itself.

In an interview with the legal news portal Bar & Bench, Dushyant Dave pointed out that two other benches presided over by Justices Agrawal and NV Ramana (10th and 11th in seniority, respectively) were dismantled by the former CJI before the matter fell to Justice Mishra. “This was completely unacceptable, because when senior judges are available, you never allow a junior judge to preside, unless the senior judges are sitting in a Constitution Bench or something. This rule was overlooked in the Sahara-Birla matter. Curiously, the two learned senior judges, Justice Ramana and Justice Agrawal, have started to preside again after two- or three-weeks’ gap. So, what was the point of taking away the presiding assignment from them?” Dave asked, describing it is a “judicial burial”.

This brings us to the second instance where a judge had broken away from the charter of ethical conduct prescribed for judges. This received considerably less attention and was passed almost without any remark by the mainstream media.

On December 10, 2016, Justice Mishra had organised his nephew’s wedding in Gwalior, Madhya Pradesh. Chief Minister Shivraj Singh Chouhan was invited to the wedding. Mishra, who also hails from the state, had been hearing Common Cause’s interim appeal over the Sahara-Birla papers since November that year. The papers retrieved from the offices of Sahara India Pariwar had indicated that Chouhan had been an alleged recipient of the company’s largesse of Rs 10 crore, delivered by an individual named Neeraj Vashisht. The petitioner Common Cause’s counsel Prashant Bhushan tweeted a photo of the two when they were spotted together at the event posing with the bride and groom, as well as a clipping from Nai Duniya reporting the same.

At a separate event in New Delhi on December 18 — a reception for his newly-wed nephew — Justice Mishra invited lawyers, judges and officials from the Supreme Court as well as the High Courts of Delhi, Madhya Pradesh, and Rajasthan. Also in attendance were Union home minister Rajnath Singh, finance minister Arun Jaitley and Rajasthan chief minister Vasundhara Raje from the BJP, among several top politicians from both the treasury and opposition benches. Dave, also among the invitees, told Bar & Bench in the same interview: “Justice Khehar was present on December 18 at a function at Justice Arun Mishra’s place where I was also present. Justice Khehar (who would be nominated as the CJI the very next day) saw that a large number of politicians and ministers from the ruling party, as also the Congress party and others were present. Once you see that the judge has amongst his friends these top politicians, he had to be circumspect and not assign the Sahara-Birla case to a bench presided by that judge…. That was the least expected of him, and he did not do it. On the contrary, he changed benches and reconstituted the Bench to allow Justice Mishra to preside and sent the matter there.”

Justice Mishra would take over from Justice Khehar on the bench hearing the Sahara-Birla matter after the CJI recused himself. Politicians from the country’s two largest “national” parties had held a stake in a potential investigation into these two corporate houses, as “prayed” for by Common Cause’s interim appeal. Mingling with top political personalities who have a substantial interest in a court’s proceedings and lawyers who plead before the courts on behalf of powerful clients, though a common practice today, is far from the “degree of aloofness” from public life expected of senior judges under the Restatement of Values of Judicial Life referred to. Clause 6 of the charter reads: “A Judge should practice a degree of aloofness consistent with the dignity of his office.” The next clause, Clause 7, says: “A judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.”

Dave pointed out that precedent called for a curative petition to rectify “irremediable injustice” in the judicial proceedings on the Sahara-Birla papers — the Supreme Court ought to have initiated these proceedings suo motu, that is, of its own accord. He cited several verdicts to support his case. In Rupa Ashok Hurra v. Ashok Hurra, a Constitution bench of the Supreme Court had created this “extraordinary remedy” in 2002. “We are of the view that though judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of,” the court had held, laying down: “In such case it would not only be proper but also obligatory both legally and morally to rectify the error.”

The Supreme Court had ruled that a petitioner is entitled to relief ex debito justitiae (that is, merely on being asked for by the petitioner) when “in the proceedings a learned judge failed to disclose his connection with the subject matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner”. Dave argued that by failing to disclose his “proximity” to political leaders, including Chouhan, Justice Mishra had proceeded to decide the outcome of Common Cause’s interim appeal where an “apprehension of bias” existed. Moreover, by not making a proactive disclosure, the judge had been “automatically disqualified” from hearing the matter without having to prove that there had been a “likelihood or suspicion of bias”, Dave continued, as the first principle of natural justice consisted of the rule against bias, based on three maxims: first, “no man shall be a judge in his own cause”; second, “justice should not only be done but manifestly and undoubtedly be seen to be done” and; the third and the most anachronistic, “judges, like Caesar’s wife, should be above suspicion”.

In 2001, the Supreme Court had observed in Kumaon Mandal Vikas Nigam Ltd v. Girja Shankar Pant that “a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge or any member of public involved in the case”. Chouhan, named in the Sahara papers, could fall under the definition of a “friend” in this situation.

More recently, in 2015, when the Supreme Court scrapped the NJAC, it had weighed the role of the “impartial judge” as proof of the existence of democracy. Dave pointed out that while dealing with the issue of judges’ recusals, the court had upheld the automatic disqualification of a judge “interested in a cause”. In RC Chandel v. High Court of Madhya Pradesh, former CJI RM Lodha had upheld the need for “impeccable integrity and unimpeachable independence” of judges in order for democracy and rule of law to exist. And after all, Dave reminded, it was Justice Misra (known for using sentences in his verdicts that are long even by the judiciary’s standards) who had waxed eloquent in 2014 that “a democratic polity, as understood in its quintessential purity, is conceptually abhorrent to corruption” and, especially corruption at high places.



[i] Khare was pushed into turning in his papers at the Tribune in March 2018, three months before his contract was to expire. The newspaper had carried a series of reports and columns critical of the government under Khare’s editorship, most notably, an exposé of Aadhaar data leaks bang in the middle of the Supreme Court hearings on the legality of the government’s private data aggregation drive.

[ii] Such matters are usually put up before the CJI for a procedure called ‘mentioning’, to assess the need for admitting them urgently. On this occasion, the matter was ‘mentioned’ before Justice Chelameswar, second-highest in seniority, at 10.30 am that morning, as the CJI was already presiding over a Constitution bench hearing arguments related to the tussle for power between the Union and Delhi governments. The matter was posted for 12.45 pm.

[iii] Both Justices Misra and Mishra come from families which have been associated with the higher judiciary across generations. Justice Misra had begun his career as a judge at the Odisha High Court. His grandfather ‘Pandit’ Godabarish Mishra, a Congress socialist at the time of the anti-colonial struggle, played a key role in establishing the court. The judge’s paternal uncle, Justice Ranganath Misra also began his career in the same court before eventually becoming the 21st CJI. He was a sitting judge in the High Court when his nephew joined its bar. As a young lawyer, Misra inherited his uncle’s legal practice. (On the other hand, Raghunath Misra, Dipak’s father, was elected to the legislature twice on a Congress ticket from the Godabarish seat.) Ranganath was appointed by Prime Minister Rajiv Gandhi to head the judicial enquiry into the anti-Sikh pogroms of 1984. He cleared all top government officials involved and became the first person to chair the National Human Rights Commission.

[iv] At the same time, noted advocate Gopal Subramanium’s name was sent back by the government for reconsideration—a first since the collegium came into being. Subramanium withdrew, writing to the CJI that he had been singled out due to his display of ‘independence and integrity’ in assisting the court twice related to Sohrabuddin Sheikh’s alleged encounter killing.


 [Editor’s Note: This is the Chapter 15 of the book ‘Loose Pages: Court Cases That Could Have Shaken India’, just published by Paranjoy Guha Thakurta. We have reproduced this section with the authors’ and publisher’s permission.]

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