A Chief Justice of India we will never have and another we are almost certain to have  

On 6 May 2014, the then Supreme Court collegium recommended the names of four people for appointment to the Supreme Court, including Justice Arun Mishra, who was then the Chief Justice of Calcutta High Court, and legal luminary and Senior Advocate Gopal Subramanium, who had served as the Solicitor General of India between 2009 and 2011.

But once the BJP government took over later that month, it accepted the recommendation to appoint three of the judges but returned the recommendation to appoint Subramanium. This was the first or rare instance when the Government of the day rejected a collegium recommendation for a Supreme Court appointment. The Government should have returned the file containing all the four names to the Collegium for reconsideration, especially since the Chief Justice of India R.M. Lodhawas abroad at the time. But the Government not only dropped Subramanium without informing the CJI but went out of its way to brief the media that adverse Intelligence Bureau reports had compelled the Government to drop him.

When the controversy continued, the Government briefed the media that Subramanium, a former Solicitor General, had convened a meeting of CBI officers with the lawyer of one of the accused in the 2G case, telecom minister A Raja. It also claimed that telephone intercepts by the Central Board of Direct Taxes (CBDT) indicated that corporate lobbyist Niira Radia had arranged for the complimentary use of a swimming pool at a luxury hotel by Subramanium.

Subramanium denied both the allegations but aggrieved by the smear campaign in the media, he withdrew his consent for elevation. He did confirm receiving a call from the hotel offering complimentary use of the swimming pool, which he had refused.

The country was thus denied the service of Subramanium as a Supreme Court judge and a potential Chief Justice of India.

Justice Arun Mishra’s father Hargovind G Mishra was also a judge of the Madhya Pradesh High Court. Justice Arun Mishra became a judge of the Madhya Pradesh high court before he completed 45 years of age, but there was no rule against it at the time.After 15 years as a High Court judge and chief justice, he was appointed to the Supreme Court in July 2014. Justice Arun Mishra’s younger brother, Vishal Mishra, an advocate in the Madhya Pradesh high court, was also made a judge of the high court before he completed 45 years of age, the official minimum age for such an appointment under the draft memorandum of procedure (MOP) for judicial appointments. The HC collegium recommended him in September 2018 and the Supreme Court collegium cleared his name on May 10, 2019 despite this apparent obstacle.

The resolution adopted by the Supreme Court collegium comprising the then chief justice of India, Ranjan Gogoi, and Justices S.A. Bobde and N.V.Ramana, said: “As far as age factor of Vishal Mishra is concerned, the collegium is fully satisfied with the justification given by the high court collegium while recommending his name”.

Justice Arun Mishra was not apparently part of the selection committee by the three senior-most judges of the SC but as No. 4 in the Supreme Court’s hierarchy of judges at the time, he was part of the five-member collegium which recommends names for Supreme Court judges.

Justice Vishal Mishra’s appointment raised eyebrows not merely because the collegium overlooked the age factor but also because of his Facebook profile, which made his political leanings overtly clear. In one of his posts, the Nehru-Gandhi family were presented as Muslims and this was cited as the reason why the “Gandhi family hates Hindus”. The post has been deleted after it was cited in several media reports.

Justice Vishal Mishra was born on July 17, 1974 and will retire in 2036, 16 years after his elder brother retired from the Supreme Court. If he is elevated to the Supreme Court, he will retire in 2039, at the age of 65. His young age means he is likely to not only become chief justice of India if elevated to the apex court, but will have a long tenure in that position.

The official notification for Vishal Mishra’s appointment as a judge was issued by the Union law ministry on May 22, 2019, one day before the Lok Sabha election results were declared.

It may not be unusual for three members of the same family becoming judges. But it is rare for two sons of a judge also becoming judges. Frowning on the elevation of the younger brother of Justice Arun Mishra, senior Advocate Sriram Panchu in a searing piece he wrote for Bar & Bench commented:

“If he ( Justice Arun Mishra) says that no wrongdoing exists because he wasn’t on this group of three ( senior-most judges who selected his brother), then all one can say is that this is a defence which even a freshly minted munsiff would have no difficulty throwing out, recollecting his elementary administrative law lessons of fairness, lack of bias and nepotism, and observance of propriety. He may have also asked which portion of the heavens would have fallen if this file was held back till senior Mishra retired?