Book review: Judging the judges

Title: A Controversial Judge

Author: Ayaskanta Das & Paranjoy Guha Thakurta

Publisher: Paranjoy Guha Thakurta

Year of publication: 2025

Before we get into this thought-provoking book, two things need to be said about it.

One, it reaffirms that courageous journalism and writing still breathe in India, notwithstanding the utter capitulation of much of the media to power and commerce. Two, the book raises troubling questions about our higher judiciary, based not on allegations or charges, but on facts available in the public domain and easily verifiable. The authors lay out the carcass of our judicial system, wounds and all, and leave it to the reader to make up his or her mind.

The central character is Justice Arun Mishra, appointed to the Supreme Court in July 2014 by the Narendra Modi government, even though the previous UPA government had twice rejected his case.

On his retirement from the SC in September 2020, he was appointed chairman of the NHRC (National Human Rights Commission) in June 2021, where he did not distinguish himself. For the first time ever, the NHRC was downgraded by GANHRI (Global Alliance of National Human Rights Institutions) from category A to B for its failure to investigate human rights violations and its police-led approach.

He retired from the NHRC in January 2025 and was, unsurprisingly and ironically, appointed ombudsman and ethics officer of the BCCI (Board of Control for Cricket in India).

In this book, fourteen of his most controversial judgments are subjected to a forensic analysis that the media, or any legal scholar, have never had the courage to undertake.

In each case, any reasonable person would find him wanting, feeling that he was prone to riding roughshod over high court judgments, fashioning previous judgments and precedents to suit his interpretations of the law, displaying a complete lack of empathy for human rights, failing to acknowledge conflicts of interest in some cases and refusing to recuse himself from them, and intriguingly ruling in favour of the government, the rich and the powerful even when there was considerable evidence to support a contrary decision.

The authors rarely, if ever, give their opinions on these cases (in deference, probably, to the prevailing climate of self-censorship, contempt laws and subdued criticism).

Instead, they meticulously lay out the facts, invariably supported by citations and references, and leave it to the astute reader to draw his or her own inferences and conclusions. Most conclusions will do no credit to Justice Mishra.

It is not possible to discuss each of these cases in a book review, but a few common threads that run through them become self-evident, enough to justify the title of this book.

Justice Mishra’s propensity to favour the government’s or prosecution’s version in just about every case is the first thing one notices. This is evident in the Elgar Parishad case, where a scholar-activist like Gautam Navlakha was allowed to be hauled out of the jurisdiction of the Delhi High Court by the NIA (National Investigation Agency), despite Delhi High Court orders, ensuring that he could not be granted bail for another couple of years.

It is also visible in the case of Sanjiv Bhatt, an IPS officer of the Gujarat cadre who fell foul of those in power by revealing details of a meeting taken by Mr Modi (then chief minister of Gujarat) during the riots of 2002, and for alleging that he was pressured by Modi and Shah to “withdraw a report he had prepared on the murder of former Gujarat home minister Haren Pandya”.

Bhatt’s writ petition in the SC for constitution of an SIT to probe the Gujarat riots afresh was heard by Justice Mishra, who dismissed it, placing implicit faith in the government’s version. He accused Bhatt of misleading the court, of suppressio veri and suggestio falsi, and of not coming to the court “with clean hands”.

This judgment effectively sealed Bhatt’s fate, the authors say. He was subsequently convicted in another, decades-old case and is now serving life in prison. His appeal is pending in the Gujarat High Court, for whatever it is worth.

This book makes the reader wonder whether Justice Mishra was ever interested in the search for either truth or justice. In Judge Loya’s case, he inexplicably refused to allow a court-monitored probe into the mysterious death of one of his own. Loya was trying a case in which Amit Shah, now Union home minister, was accused in a murder or false encounter.

In the Sahara-Birla bribery case, he refused to allow in evidence a handwritten note in which payment of bribes was recorded, including allegedly to Mr Modi, then CM of Gujarat. The rejection was based on a technical definition of what constitutes a “diary”. Justice Mishra held that since the so-called payments were recorded on loose sheets of paper and did not have spiral or permanent binding, they could not be considered admissible evidence.

The case, naturally, fell apart in the absence of this crucial piece of evidence.

Hearing the constitutional challenge to the Forest Rights Act (FRA), which sought to confer land rights on traditional forest dwellers, Arun Mishra, instead of addressing the constitutional issues involved, peremptorily ordered the eviction of millions of tribals at the second hearing itself. This was done without ascertaining whether their claims had been adjudicated according to law.

It was only when the BJP govt in Delhi, which had done nothing to defend its own Act, feared an electoral backlash and requested the court to reconsider, that Justice Mishra stayed his own order in 2020. The case remains in limbo to this day.

Brandishing his authority like a cudgel, the Hon’ble judge took suo motu notice of two tweets by Prashant Bhushan, noted activist and SC lawyer, about the role of four past chief justices in the dismantling of democracy, and convicted him of contempt of court.

This was in spite of advice to the contrary by the attorney-general of India and a legion of legal luminaries and civil society members. This judgment itself has done much to tarnish the image of the SC as a protector of free speech.

The book meticulously documents how, in the 18 months prior to his retirement, Justice Mishra delivered a series of judgments — eight, to be precise — in favour of the Adani Group and Reliance Industries.

Through these rulings, the companies benefitted by thousands of crores of rupees, effectively reducing the telecom sector to a duopoly.

Once again, the rub lies in the manner of interpretation of laws, facts and precedents. Without going into the intricacies of the judgments — the reader can peruse them and draw his or her own conclusions — the sheer coincidence of timing and disposal is intriguing. As Ian Fleming famously said: “Once is happenstance, twice is coincidence, but three times is enemy action!”

The other cases and judgments analysed in this book only reinforce the misgivings about Justice Mishra’s credentials as an impartial purveyor of justice. Sadly, one cannot discuss them all in this review.

Suffice it to say, however, that by the end of this book, one cannot but grapple with four troubling questions. One, are we overhyping the notion of “independence of the judiciary”, given that the virtual immunity offered to judges is not serving its stated purpose?

Two, it is being demonstrated daily that judicial independence without corresponding accountability can only lead to judicial tyranny. Therefore, should there be greater focus on the other doctrine — accountability of the judiciary?

Third, is the country being let down by the manner in which we appoint and promote our judges? Four, should re-employment of retired judges be banned entirely, as it seriously compromises their loyalties?

Inconvenient questions, but ones that will have to be addressed sooner rather than later. If the fourteen judgments discussed in this book compel the reader to reflect on these issues, it would have done its job.

Views are personal. More of the writer's works can be read here

Avay Shukla is a retired IAS officer and author of Holy Cows and Loose Cannons — the Duffer Zone Chronicles and other works. He blogs at avayshukla.blogspot.com