Judicial disgrace: Fawning judges

Justice Arun Mishra’s fulsome praise of Prime Minister Narendra Modi at a public function does not augur well for the independence of the judiciary.

Justice Arun Kumar Mishra.

Sixty years ago, K.M. Munshi, distinguished lawyer known for his independence, sharply criticised the legal culture of fawning lawyers and frowning judges that had overcome India. He did not know that the tribe of fawning judges was also growing fast. Now it has grown to an alarming extent. We have ill-tempered judges who are rude to lawyers in court but are sycophantic to Prime Ministers and Ministers.

Consider this: It concerns Justice Arun Mishra of the Supreme Court, based largely on the report of Krishnadas Rajgopal of The Hindu of February 23, 2021, titled “ Modi is a versatile genius who thinks globally and acts locally: Justice Arun Mishra ”. Delivering the vote of thanks at the inauguration of the International Judicial Conference 2020, Justice Arun Mishra described Prime Minister Narendra Modi as an “internationally acclaimed visionary” and commended his “versatile genius” to “think globally and act locally”. Justice Mishra, one of the first five most senior judges of the Supreme Court, twice heaped praises on Modi while delivering his speech “Judiciary and the Changing World”.

“India is a responsible and most friendly member of the international community under the stewardship of internationally acclaimed visionary Prime Minister Shri Narendra Modi... We thank the versatile genius who thinks globally and acts locally, Shri Narendra Modi, for his inspiring speech, which will act as a catalyst in initiating the deliberations and setting the agenda for the conference,” Justice Mishra said.

On the dais were Prime Minister Modi, Chief Justice Sharad A. Bobde, Justice N.V. Ramana, Union Law Minister Ravi Shankar Prasad, Attorney General K.K. Venugopal and Justice L. Nageswara Rao. The function had in attendance Supreme Court and High Court judges, judges from across 24 nations, former judges and advocates.

Several retired judges, senior lawyers and politicians were sharply critical of the sitting Supreme Court judge’s remarks. Terming his remarks sychophantic, atrocious and a threat to the independence of the apex court, some even called for him to recuse himself from all cases against the government.

“This is astonishing and atrocious, what this judge is doing,” Justice A.P. Shah, former Supreme Court judge, told The Hindu . Another former Supreme Court judge, Markandey Katju, offered a sarcastic comment on Twitter, in Hindi: “Supreme Court ka judge kaisa ho? Arun Mishra jaisa ho ,” he tweeted. (What should a Supreme Court judge be like? Like Arun Mishra.)

Some senior lawyers also expressed unease. Rahul Mehra, Standing Counsel for the Delhi government, said: “Justice Mishra has left no stone unturned in giving an impression that the Indian higher judiciary has truly changed in the last five years. What a speech by a sitting judge!” Noting that Justice Mishra was all praise for the Prime Minister, Supreme Court lawyer Prashant Bhushan said: “Do you wonder why the Supreme Court is not protecting your rights?” Activist-musician T.M. Krishna echoed his concerns, tweeting: “Such public display of sycophancy and we still expect the Supreme Court to be fair and untainted! We are all fools.”

Former Navy chief Admiral Arun Prakash (retd.) noted that Justice Mishra’s comments went against what was expected of the judiciary. “Disappointing and very disturbing. The dignity, gravitas and detachment that people expect from serving judges of the country’s apex court require them to refrain from appearing obsequious to anyone in public,” he said.

In a resolution, the Supreme Court Bar Association (SCBA) strongly condemned Justice Arun Mishra’s praise of the Prime Minister. It said that such statements “reflect poorly on the independence of the judiciary and so calls upon the Honourable Judges not to make any statements in future nor show any proximity or closeness to the Executive, including higher functionaries”.

The Supreme Court lawyers’ body, led by president and senior advocate Dushyant Dave, said it “believes that the independence of judiciary is the basic structure of the Constitution of India and that such independence be preserved in letter and spirit”. Dushyant Dave is known for his integrity and independence. The SCBA expressed a “deep sense of anguish and concern” at Justice Mishra’s remarks. The SCBA resolution, however, was not unanimous. This reflects on the state of the Bar.

Manan Kumar, senior advocate and Bar Council of India chairperson, said: “Justice Mishra’s speech was in the capacity of a host and he used best of words for all the guests who graced the occasion. He was not holding a court at that time. The Prime Minister and Union Law Minister were the chief guest and guest of honour [respectively] of that function. I myself was present in that function, but I did not find anything wrong in Mr Mishra’s speech.” That says a lot about him.

The concern among lawyers was not restricted to the SCBA. The Bar Association of India (BAI) also issued a formal statement conveying its concern and dismay over Justice Mishra’s “effusive terms of praise and adulation” for Modi. It said Justice Mishra’s words went “beyond the terms of formal courtesy extended during a vote of thanks address”.

The BAI, a federation representing lawyers from the Supreme Court Bar, local courts, law societies and firms across the country, said it was the “foundational obligation [of judges] to maintain a discreet and dignified distance from the Executive branch of the government….such an act serves to dilute the perception of impartiality and independence and diminishes the confidence of general public as judges of Supreme Court are expected to decide cases against the executive branch while upholding constitutional principles and the Rule of Law as paramount.”

Justice Arun Mishra hails from Madhya Pradesh and was reportedly, but not surprisingly, close to Chief Minister Shivraj Singh Chauhan. The Bharatiya Janata Party (BJP) regarded him benevolently. Reportedly, his nomination to the Supreme Court was rejected many times by its Collegium before it gave in in 2014 shortly after Modi became Prime Minister. Some responsible members of the Bar have advanced a list of some of his judgments in important cases concerning the state and big business. That is not sufficient. What is necessary is a detailed study of those very judgments which appear strange within reasoned conclusions.

Tradition of sychophancy

Meanwhile, his speech alone suffices to reveal him in his true colours. One is reminded of Justice P.N. Bhagwati’s effusively flattering letter to Indira Gandhi on her return to power in 1980. Thereby hangs a tale. The Bar was divided. This writer is constrained to reveal what a Supreme Court judge, Justice D.A. Desai, disclosed in May 1983 “on the sidelines” of a seminar under the auspices of the Bar Council of India about how he, and presumably a couple of others as well, descended from the judicial perch to seek out members of the Bar to persuade them to support Bhagwati. The stated reason was that he was a fine craftsman of judgments. The reality was friendship and a bogus brand of leftism.

We know little of the doings of judges outside courthouses save from revelations in the archives and books. To give an instance, Kuldip Nayar moved a resolution in the Press Council during the Emergency. It was not passed. The “White Paper on the Misuse of Mass Media During the Internal Emergency” revealed the dirty work that prevented its acceptance. That dirty work was done by a former judge of the Supreme Court, Justice M. Rajagopala Ayyangar, who presided over the Council. In an abject letter to the Information Minister, V. C. Shukla, dated August 13, 1975, he wrote: “You remember I spoke to you about the desire of some members to have a meeting convened for the purpose of discussing the Emergency and the Censorship. I had an informal meeting of the Delhi-based members and I was able to convince them that this is not necessary or desirable. So this will not figure in the agenda of any meeting that is being called.” Evidently the judge had a good rapport with the despised Minister.

The tradition goes back longer. The Nehru Memorial Museum and Library has the papers of M.C. Chagla and others. On January 4, 1971, Justice M.H. Beg of the Allahabad High Court wrote to Prime Minister Indira Gandhi’s Secretary, P.M. Haksar, reviling H.M. Seervai and propounding a doctrine close to Haksar’s heart. It began thus:

“My dear Haksar,

I hope you enjoyed reading Mr. Seervai’s book as much as I did. I think this gentleman who is said to have refused an offer to be made a Judge of the Supreme Court as the salary was too meagre for him to accept, effectively conceals some confused thinking behind his alluring facade of sweeping generalisations and an incisive and piquant style which can easily pass off for clear headedness and brilliance. I will illustrate what I mean.

“The earlier parts of the series of lectures does bring out, rather well, the dangers of the system of Judicial Review which we have adopted and show how such a system necessarily involves decisions by Judges, in the light of Constitutional provisions, on questions which are essentially political and socio-economic.

“Eminent jurist of today, Professor Julius Stone in his works such as the voluminous ‘Province and Function of Law’, and Prof. [Wolfgang Gaston] Friedman in his ‘Legal Theory’ and ‘Law in a Changing Society’, not to mention the earlier writings of eminent Judges like [Terrence Holmes and [Benjamin] Cordozo, have also emphasised the inseparability of the underlying, political and socio-economic theories and doctrines from legal principles - particularly in the field of Constitutional Law. Even the much derided Dicey had said that the domain of Constitutional law lies between Politics and Law.

“Therefore, if the system of Judicial Review must, as is inevitable, result in subjecting political and economic issues to judicial scrutiny and judicial verdicts on the reasonableness Or Constitutional validity of legislation, and, if these verdicts have been so highly unsatisfactory as Seervai says they are, the suggested solutions could be either: (a) Abandonment of the system of Judicial Review so as to at least withdraw legislation from the judicial sphere of scrutiny by a Constitutional amendment or (b) a clearer and foolproof set of Constitutional provisions on basic questions; Or / And (c) Judges who understand better the political and socio-economic theories underlying the Constitution and modern needs and problems and trends; that is, the law itself viewed in relation to what produces it and what purposes it has to serve today. …” The letter ran into four pages, a tirade on judicial review to please Haksar.

His efforts succeeded. Haksar made sure Beg became a judge of the Supreme Court. During the Emergency, Haksar saw nothing wrong in approaching all the judges on the Bench deciding Indira Gandhi’s election case; all (A.N. Ray, K.K. Matthew, V.R. Krishna Iyer and Bhagwati) except Justice H.R. Khanna.

M.C. Chagla’s letter to Nehru

A letter by M.C. Chagla to Prime Minister Jawaharlal Nehru dated July 3, 1953, ended thus: “May I in the end say how very proud we all are of our Prime Minister who has given to our country international status, which even countries more seasoned in diplomacy may well envy?” Chagla was then Chief Justice of the High Court of Bombay. The letter was addressed to “My dear Panditji”.

On another occasion, Nehru sharply snubbed him. A letter by Chagla dated January 28, 1953, began by professing “one who thinks that he may count himself as your friend and as one who has given you the most unswerving loyalty and has for you the greatest respect and admiration.”

Such effusiveness was typical of Chagla. He was then Chief Justice. The correspondence concerned his altercation with Morarji Desai, the Chief Minister, which had disturbed Nehru. He replied on January 30, 1953: “There is no question of loyalty or respect for each other that we may have.”

It was Chagla who began the practice of delivering speeches on public affairs. He also showed gross impropriety in accepting the offer of ambassadorship to the United States just five months after he had signed the Law Commission’s report against such behaviour.

It is not publicly known that Chagla wanted a lien on his job as Chief Justice of the High Court when he became Ambassador. Nehru put his foot down. Chagla must resign “the day he leaves India”. Why not earlier, the day he was appointed Ambassador? Since Chagla would “suffer financially” in the interim, it was proposed that the post of Officer on Special Duty be created for him. Comment is unnecessary. (Foreign Secretary Subimal Dutt’s minute dated October 15, 1958.)

It was said of Chief Justice of India P.B. Gajendragadkar that he was a judge among politicians and a politician among judges. He had close “personal” relations with Prime Minister Lal Bahadur Shastri and advised him on the conduct of negotiations with the Russians at Tashkent. He was also a close friend of T.T. Krishnamachari, as he records in his memoirs To The Best of My Memory ; S.K. Patil was also a friend of Chief Justice Gajendragadkar.

The tip of the iceberg is daunting in its features. One shudders to contemplate the iceberg itself.