Letter to NHRC chief: Scandalous appointment

img1 A. J. Philip
07 Jun 2021

Dear Justice Arun Mishra,

A few weeks ago when a Malayalam daily reported that you had not vacated your official residence, although you retired from the Supreme Court on September 2, 2020, I was not taken by surprise. Ordinarily, you could have stayed only for one month after superannuation, except by paying penal rent.

I was sure that you were expecting a sinecure in the Capital, given the good work you had done in the perception of those in power. My guesswork was right, as you have been appointed Chairman of the National Human Rights Commission (NHRC).

Let me be frank, I did not know that you were eligible for the post. I was under the impression that only a retired Chief Justice of the Supreme Court could hold the post. I knew a little bit about the history of NHRC from the biography of Justice Fathima Beevi written by my friend KT Ashraf.

She was my neighbour at Valanchuzhy in Pathanamthitta district in Kerala when she started her career, first, as a lawyer and, then, as a magistrate. We are both alumni of the Government Primary School opposite the erstwhile Pathanmthitta taluk office.

I did not know that the rules were amended to allow even a retired judge of the Supreme Court to become the chairman. Who knows the government had you in mind when the rule was amended. How dear you are to the government is borne out by the fact that there are some retired chief justices who were overlooked while appointing you.

To be fair to you, it should not be held against you that you never held the post of Chief Justice. Who does not know that not one but many who held the post of CJI were beholden to you and even senior judges were in awe of you. 

Four of them even felt compelled to address a Press conference when they realised that you were being given politically important cases. The proximate cause of their “revolt” was the plan to give the case of Justice Loya, the CBI judge who was allegedly murdered, to you to decide!

The four poor musketeers did not know that the bench which finally heard the case would conclude that he died of cardiac arrest. Thanks to the sagacious verdict, the gentleman known by the name of Amit Shah, did not even have to be tried for his alleged involvement. For starters, judge BH Loya was hearing the Sohrabuddin Sheikh fake encounter case! 

I have been keenly following your verdicts, not because I had any special interest in you but because you were getting important cases. From what I could make out, you were a prolific judgement writer, forcing some lazy CJIs and fellow judges to rely on you. 

Of course, your record does not come anywhere near that of Justice V.R. Krishna Iyer and Justice Koka Subba Rao. Like you, Justice Iyer did not get a chance to head the apex court. Comparisons are odious and I hate to compare anyone with anyone. It is idiotic to say that Shakespeare was a greater writer than Kalidasa or vice versa.

I am a great fan of Justice Iyer, whom I had the privilege of interviewing for several hours while he was on a visit to Patna. I first heard him when he inaugurated the students union at Catholicate College, Pathanamthitta, my alma mater in 1969. 

I was a cub reporter when Iyer, as vacation judge in the summer recess of 1975, delivered the historic verdict rejecting Indira Gandhi’s plea for unconditional stay of the Allahabad High Court verdict unseating her from Parliament. 

Nani Palkhivala who appeared for her virtually threatened the judge of “momentous consequences, disastrous to the country, if anything less than the total suspension of the order under appeal were made”. Iyer was not bothered. Constitutional historian HM Seervai said the verdict represented the finest hour of the Supreme Court.

By the way, Justice Iyer’s verdict was published in full in all the major English newspapers of the country. You should read it, if you have not. Justice Iyer made no secret of the fact that a judge must have a social philosophy and a humane approach to legal problems.

While Subba Rao had an obsessive concern with fundamental rights, Justice Iyer’s concern was broader — for the poor and downtrodden. "He carved out a special entrance for the destitute in the somewhat formidable portals of the Supreme Court". 

Now, please keep your right hand on your chest and ask yourself what you have done to uphold human rights in the country. I do not know whether you know that Justice Iyer was against constituting the NHRC. 

He believed that it was the duty of the court to ensure that violators of human rights were punished. Few judges, either living or dead, could write or speak like him.

I am sure you would be happy to read what he said about the NHRC. “It is an optical illusion, cosmetic coloration, opium for the people at home and brown sugar for countries abroad, a legislative camouflage, a verbal wonder which conceals more than it reveals. An ineffectual angel which beats its golden wings in the void in vain”.

At a seminar organised by the Bar Council of India when the NHRC idea was floating in the air, Justice Iyer opined that “we should have the Human Rights Division of the Supreme Court of India”. Justice TK Thommen from his own state was a strong votary of the NHRC.

At that time there was a provision that one of the members should be a serving judge of the Supreme Court. No serving judge wanted to serve under a retired Chief Justice. So Justice Thommen who was on his deathbed was appointed a member. He could not assume charge as he died on December 20, 1993.

I am sure you will not question my assertion that your appointment is controversial. It is not the first time that controversies have dogged the constitution of the NHRC. When Justice Ranganath Mishra was appointed the first chairman of the commission, people questioned his competence.

It was Mishra who tried to camouflage the anti-Sikh pogrom that followed the assassination of Indira Gandhi. How could a person, who inquired into the 1984 riots, and whitewashed the role of the Congress leaders be the chairman of the NHRC? For the services done to the Congress, he was elected to the Rajya Sabha on the Congress ticket.

He was the second former judge to become a Rajya Sabha member. You know Mishra’s nephew Justice Dipak Mishra, the 45th CJI, under whom you “excelled” as a judge. There were corruption charges against the CJI and I do not have to tell you how he was “exonerated” in wanton misuse of judicial authority. 

Similarly, another CJI who faced a sexual harassment charge, was allowed to escape scot free and become a Rajya Sabha member!

Your pedigree is no less formidable. Your father was a judge of the Madhya Pradesh High Court. Incidentally, MP was the first state to have a human rights commission even before the NHRC was set up. You were not even 45 when you became a High Court judge.

Your younger brother, too, became a HC judge even before he touched 45. There was no age barrier when you were appointed but there was one when he was appointed. In India, connections matter more than anything. What I remember him is for his Facebook post which said that “Nehru-Gandhi family is Muslim and that is why they are against Hindus”.

If he is elevated to the SC, he will have the longest tenure as a judge and, later, CJI. That is not germane to the discussion here. As I write this, I have before me today’s newspapers which report in detail the Supreme Court verdict that exonerates journalist Vinod Dua from the charge of sedition.

What’s more, the court says unambiguously that criticism of the government by the practitioners of journalism is not sedition. In contrast, I remember the tense moments the nation had when you sought to punish advocate Prashant Bhushan for two of his tweets. 

The Supreme Court is the last court of appeal. It is also the last hope of the people. They are happy that the apex court has, of late, been asking some tough questions to the government. For instance, on the oxygen and vaccine issues. The court has to uphold the rule of law. It should not be dictated by the government of the day.

I was aghast when the court failed to do justice to the people of Jammu and Kashmir who one fine morning found that their state no longer existed. I consider Sanjiv Bhat as a hero. Do I have to tell you who is responsible if he rots in the jail? How is it that in all cases in which the government had a vested interest, your verdicts were in favour of the government, not the victims?

In the Best Bakery case in Gujarat, all the accused were exonerated. The owners of the bakery told journalists that they gave a false evidence because of the pressure from those in power in the state. The Gujarat court declared itself a court of evidence, not justice.

It was the NHRC which intervened and asked the Supreme Court to hold the trial outside of Gujarat. Similarly, it was the NHRC which conducted an examination of the Bijbehera incident in J&K involving the death of 31 civilians and injury of about 75 in a firing incident by the BSF.

The NHRC cannot but play an adversarial role. Are you equipped to play that role? Nobody will forget what you said about Prime Minister Narendra Modi that he is  an “internationally acclaimed visionary who could think globally and act locally”. What’s worse, you said this at an international conference of jurists when you were a judge of the apex court. 

I did not find much difference between your comment and what a BJP spokesperson in Maharashtra Avadhut Wagh said about Modi that he is the eleventh incarnation of Lord Vishnu. If Justice Iyer’s verdict was the finest hour, your statement was the pits, I am sorry to say.

You were chosen by a five-member committee headed by the Prime Minister. The leader of the Congress in the Rajya Sabha, Mallikarjun Kharge, opposed your selection on the ground that it smacked of quid pro quo. 

He had a valid point when he argued that the chairman or a full-fledged member should be from a scheduled caste or scheduled tribe or minority community. If you check the volume of complaints the NHRC receives on any given day, a majority of them will be from Dalits, Adivasis and Muslims.

Your selection is also a reflection of the brazenness with which the government has been tackling protest. Do you know that Amnesty International played a major role during the formative period of the NHRC when it helped in the codification of its rules and regulations? Today, the same organisation stands expelled from India because the government does not want anyone to raise fingers against it.

This is the background in which you have assumed charge as Chairman. Recently, one of my friends lost her father. She had a flat in the apartment complexes at Marad in Kochi which were demolished on your order. She spent her hard-earned money to tastefully furnish the flat.

You ruined her family’s dream of leading a happy life in that flat. What did you gain from that maverick decision? Yes, when you retire from the NHRC post on turning 70, you can show your grand and great grandchildren video clips of the demolition which neither Bollywood nor Hollywood can replicate.

Yes, there can be a change of heart. The Bible tells the story of Saul, the tormentor of Christians, who became Paul, the Apostle. I hope that you, too, will become the champion of human rights and do justice to the post you hold as Chairman of the NHRC. May God bless you!

Yours etc

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