Constitution , Not Conscience, Letter to Arun Mishra

A. J. Philip
14 Sep 2020

Dear Mr Justice Arun Mishra,

It is your parting comment that you wrote your judgements on the basis of the dictates of your conscience that prompts me to write this letter. I thought all judges, especially of the Supreme Court, gave their verdicts within the four walls of the Constitution, based on the materials placed before them in the larger interest of “we the people”.

It is the first time a judge has used the word “conscience” to justify his decisions. You would do well to remember how you took your oath of office. Did you say that you would uphold your conscience at all times without fear or favour? Did the word 'conscience' figure in the oath at all? Like every judge, you had taken the oath to uphold the Constitution, not your conscience.

I do not suggest that conscience has no role. The word means the part of your mind that tells you if what you are doing is right or wrong. That depends on the kind of conscience you have. I will come to that in an instant.

When Adolf Hitler sent thousands of Jews to the gas chambers at Auschwitz and other places, his conscience was clear that he was doing a great thing to wipe out all alien cultures from his Fatherland. The Pol Pot regime in Cambodia, which was at one time a great civilisation as can be inferred from Angkor Wat, did worse things in the name of conscience.

Again, it was conscience which guided those who pushed the poor Muslims into the oven of the Best Bakery in Gujarat in 2002. Those “gentlemen” who threw LPG cylinders into the burning houses of some in Northeast Delhi were also guided by their conscience. Mr Justice, your conscience theory is hollow. You said your conscience is clear as you retire from the apex court. Whether you have the moral right to retire honourably and draw a fat pension or not is a separate question.

No, I do not grudge your luck of being born in privileges or, to use a cliche, with a silver spoon in your mouth as the son of a high court judge. What about those whose lives have been devastated by your arrogance and misapplication of justice?

I have a friend who had a house in an apartment complex in Kochi which you got demolished for no rhyme or reason, except to satisfy your ego. Her husband is a doctor in a government hospital in a small country known as the “Abode of Peace” in Southeast Asia. It is a Kingdom where the doctors are paid well. They are a small family. They know that they cannot live on the island, once his job contract is over.

That is why they bought the flat in the hope of settling down in it once they returned to Kerala for good. She did everything possible to furnish and decorate their house. Today, all her dreams lie buried in the debris, part of which is still in the backwaters. You retired peacefully but she can never retire peacefully because you shattered her peace and sense of security forever.

No, she is not the only one to suffer. She sent me a letter written by a flat owner who bought two flats taking bank loans in the belief that the rent from one flat would help make a living once he returned to Kerala. Today, he has to pay EMI for the two flats he had the mortification to see imploding. Do you know the consequences of your action? You were ostensibly protecting the environment. Did you know that when the great flood occurred in 2018 and water entered the first floor in the Kochi International Airport, not a drop of flood water entered the five towers which were dynamited?

The buildings did not come up one fine morning. The 343 flat owners were paying land rent and GST on the materials used in the construction on loans advanced by banks which did not sense anything wrong in the land documents mortgaged to them. Finally, the Kerala High Court cleared the construction and people were staying comfortably there. That is when you intervened and ordered the demolition that nobody asked for.

Now that you have a lot of free time as your post-retirement job is yet to come, I am ready to take you to some DDA colonies to show you how tens of thousands of flats have undergone modifications and expansion by greasing the palms of the police and the DDA authorities etc right here in the heart of India’s Capital.

There is the famous apartment complex that came up in Mumbai ostensibly to accommodate the widows of Kargil. It was in total violation of all rules. However, judges, more sensible than you, imposed a heavy penalty and regularised the construction for they knew that the option of demolition would have been environmentally more harmful. Judge, you could have asked the government to take over the buildings to accommodate central government officials posted in Kochi. Alternatively, the flats could have been given to roofless persons. Or, to the owners themselves who were ready to pay a penalty.

Instead, what did you do? You ordered demolition. The Kerala Government had to spend crores and crores of rupees to demolish and clear the debris. Now, the government will have to meet the demands of the local people whose houses suffered damages when the apartment towers were demolished. A friend suggested that your provident fund etc should be attached to meet a part of the cost, though there is no such provision in the law. I won’t blame you alone for your abhorrent act.

Your higher authorities should have intervened and prevented the demolition. Alas, the Chief Justice was more interested in saving himself from the charge that he sexually exploited a staff member than to be bothered by the travails of the apartment owners. Do you know that under the new environment rules brought into force by the Modi Government, the same structures can be rebuilt on the same spot without question? Did not you feel ashamed when you came across this fact? How could you, because you were guided solely by your conscience that had nothing to do with realities?

How I wish you had heard my friend or any of the flat owners before you gave your like Tughluq-like order! I am sorry that I compared you to Muhammad bin Tughluq, the 14th century ruler who had a greater common sense for he changed his decision and brought back his Capital to Delhi. Unlike you, he did not persist with his folly. He changed his decision as soon as he realised the blunder.

Arrogance has been defined as knowledge without wisdom. You caused a social turmoil in Kerala by dispensing justice totally in favour of the Orthodox faction against the interests of the Jacobite group.

I could have understood you giving at least some churches where the members are predominately Jacobites to the Jacobite church. We saw at Mulanthuruthi and other places Jacobites forcibly evicted from their churches. Let me add, I do not have any sympathy for either faction because they allowed a character like you to decide the case when the Bible teaches how brothers should settle their disputes in a spirit of reconciliation.

I remember how arrogantly you threatened to name a High Court judge of Kerala for giving an order which was essentially ameliorative in character. You did not even think that the judge could have been elevated to occupy the same place you occupied in the apex court.

I had the fortune of interviewing Justice VR Krishna Iyer, one of the greatest judges of the Supreme Court. He was courtesy personified. He never lost his cool even when I asked him some tough questions like how he spoke to his dead wife. You should have remembered that the Supreme Court is supreme not because it has superior wisdom but because there is no higher appellate court in India. Yet, you had the audacity to humiliate the judge in your court knowing full well that the victim judge could not retaliate.

I have noticed that the most arrogant persons are the most subservient to their masters. You were no exception. At an international judicial conference in February, you had a forum to expound your legal theories or, as is wont now, to claim that human rights and the rule of law originated in India where there were groups of people who were not only untouchable but also unseeable.

Instead, you used the forum to describe Narendra Modi as a “versatile genius” and an “internationally acclaimed visionary”. Even Modi would have been embarrassed by your praise. Many of his party men realise that he is a spent force whom they do not know how to get rid of. When I read your speech, I remembered former Union Law Minister Arun Jaitley who once mentioned that judges were people who moved about in high circles distributing their biodata. He also described in Parliament how they created jobs for themselves like by ordering that every Chief Information Commissioner in a state should be a retired judge. Sorry, I saw your praise as an appeal to Modi for a post-retirement job.

We have seen how Modi picked up Justice Ranjan Gogoi for a Rajya Sabha seat even before the chair he occupied in the Supreme Court had lost his warmth. There are reports that he may even be the BJP’s Chief Ministerial candidate in Assam. I am sure that you know Rekha Sharma, a former judge of the Delhi High Court. Even if you do not know her, you would certainly have read her article entitled “Goodbye Justice Mishra: His legacy casts a shadow over the country’s highest court at a critical moment” (The Indian Express, September 3).

You came to the limelight when you were chosen to hear the case seeking investigation into the mysterious death of CBI judge BH Loya, who was hearing the case of the encounter killing of Sohrabuddin Sheikh and his wife in which Home Minister Amit Shah was allegedly involved. True, you recused yourself from the case when three senior judges revolted against the practice of allocating politically significant cases to you, a relatively junior judge.

The whole country was shocked when Chief Justice Ranjan Gogoi constituted a Bench presided over by him with you as a fellow judge to hear the case against himself. If you had any sense of shame, you should not have joined the Bench. How could Gogoi preside over a bench which was constituted to whitewash the charge of sexual harassment against him? Or, do you believe that a CJI has a superior morality that allows him to attempt the physical?

Never before had the Supreme Court’s prestige plummeted to such a low depth. While advising my friends to read Justice Rekha Sharma’s article, let me mention your parting gift of Re 1 to the national exchequer. What contempt did Prashant Bhushan cause that you did not cause by gagging the Press not to report the details of the allegations against your former boss?

Do you know how much money and time of the government and the Supreme Court you have wasted to extract that one rupee from Bhushan? This was at a time when the court did not have time to hear petitions about the abrogation of Article 370 of the Constitution and breaking up of J&K, the brainwave of Amit Shah. You have retired. You may become a governor or a minister or a chairman of some authority which will fetch you a lot of power and pelf but remember what the great English essayist Francis Bacon said, “Judges must beware of hard constructions and strained inferences, for there is no worse torture than that of laws”.

It is a time of repentance, a time to atone for your decisions that have ruined the lives of many, Mr Justice Arun Mishra.

Yours etc

(The writer can be reached at: ajphilip@gmail.com)

(Published on 14th September 2020, Volume XXXII, Issue 38)

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