Justice Arun Mishra Helps Adani Profit For Seventh Time in a Row

Justice Arun Mishra, in his last judgement before retirement, ruled in favour of the Adani group, leading to a gain of almost 5,000 crore rupees for the company, owned by the second richest man in the country. This was the seventh case in the last two years involving the Adani group that was heard by a bench led by Justice Arun Mishra, in which the verdict was in favour of Adani.

In August 2019, a letter by senior advocate Dushyant Dave written to the then CJI, Ranjan Gogoi, alleged various irregularities of procedure in cases involving Adani group heard by Justice Arun Mishra.

The Long History between Justice Mishra and Adani

An extensive report by Abir Dasgupta and Paranjoy Guja Thakurta on Newsclick.in outlines the series of judgements in which Justice Arun Mishra has favoured the Adani group, and the discrepancies in the manner in which each of these judgments was made. The report makes the following points.

• On January 29, 2019, an SC bench led by Justice Arun Mishra ruled in favour of Adani. He led the bench even though other judges who had prior history with the case were available, and this category of cases had been assigned to a different bench.
• On May 2, 2019, the Justice Mishra’s bench took over a case and ruled in favour of Adani Electricity Mumbai Limited. Under extant SC procedures, it should not have done so. The same bench on July 16, 2019, dismissed a review petition against its earlier decision.
• On May 7, 2019, a case involving an Adani company engaged in mining coal in northern Chattisgarh, was listed before a summer vacation bench headed by Justice Mishra, which ruled in favour of Adani. A different bench that was originally hearing the case did not give any order that it be so listed.
• On May 23, 2019, the same bench took up an early hearing application made by Adani, the very next day after the application was made. In another order on July 2, 2019, it again ruled in favour of Adani. Both these cases, according to Dave, were listed, taken up, and heard without any justification and in a hurried and improper manner. 
• On July 22, 2020, an SC bench presided over by Justice Arun Mishra ruled in favour an Adani group company again.

In all of these hearings, which allegedly took place under suspect conditions, SC benches led by Justice Arun Mishra ruled in favour of Adani, causing thousands of crores of profit to the company from public funds.

In another report on Newsclick, Abir Dasgupta and Paranjoy Guha Thakurta outline the details of the current case, in which the SC bench has now ruled in favour of Adani Power Rajasthan Limited (APRL). In this case, Adani made a claim for compensatory tariffs from public-owned power distribution companies. Dasgupta and Thakurta explain in their report that APRL had won contracts from the Rajasthan government to supply electricity by bidding, while Adani Enterprises Limited (AEL) attempted to secure allocation of a coal block or coal linkages with the Central Government, which fell through.

In 2013, APRL made a claim for a compensatory tariff on the ground that it had to generate power by using coal imported from Indonesia, which was more expensive than domestic coal. While the State Electricity Regulatory Commission allowed the claim, Rajasthan Distribution Companies filed an appeal before the Appellate Tribunal for Electricity. The SC bench led by Justice Arun Mishra, upheld this decision, going against a landmark ruling by Justice Rohinton Nariman in 2017.

Justice Nariman had, delving into the legislative intent of the Electricity Act, 2003, determined that a company that bids a certain tariff level, is assuming the risk of fluctuations in the cost of inputs, including fuel, and therefore cannot seek later compensations for increases in input costs (Dasgupta and Thakurta, Newsclick.in)

Justice Mishra and the BJP

Recently, Justice Arun Mishra also led the bench that convicted Prashant Bhushan of contempt of court for suggesting links between the CJI and the BJP and accusing former CJIs of corruption.

Justice Arun Mishra, who was elevated to the Supreme Court soon after the BJP-led NDA government came to power in 2014, has had documented links to the BJP and has been involved in a number of controversial judgements. In 2015, he was part of a bench that dismissed the petition by Sanjiv Bhatt regarding the 2002 Gujarat Pogrom. Bhatt had accused the then Chief Minister of Gujarat Modi to have instructed top police officials to allow the violence to take place. In 2017, Justice Mishra dismissed a petition into the “Sahara-Birla papers” which showed large payments made to various public servants, including payment of 25 crore rupees by a Senior Executive in the Sahara Group to Modi, while he was the Gujarat CM.

On July 5, 2019, a bench led by Justice Arun Mishra had reversed the acquittal of the 12 accused in the Haren Pandya murder case. Haren Pandya, a BJP member and Home Minister of Gujarat at the time, was shot dead in 2003 in Ahmedabad. 12 Muslims were convicted of his murder by a special court convened under the Prevention of Terrorism Act (POTA) in a closed trial inside Sabarmati Jail without public or media access. In 2011, the Gujarat High Court had reversed the conviction, saying that CBI investigation was botched up, there was a lack of evidence, and most of the conviction relied on the inconsistent account of one eye witness. This acquittal was reversed by the Supreme Court bench led by Justice Arun Mishra, shortly after the Lok Sabha elections that swept Narendra Modi back into power. While doing so, Justice Arun Mishra fined the Centre for Public Interest Litigation, that was being represented by Prashant Bhushan, Rs 50,000 for “wasting” the Supreme Court’s time.

Justice Arun Mishra’s tendency to rule in favour of the BJP and corporates like Adani is one of many complaints against multiple Supreme Court judges who have allegedly engaged in various forms of corruption. This betrays a lack of accountability enjoyed by the Supreme Court and its judges, and the ability to target anyone who makes such a critique. Justice Karnan, who had attempted to point towards the structural corruption and caste discrimination in the judiciary was convicted of contempt and imprisoned for 6 months, while the media was barred from publishing his statements. While Prashant Bhushan enjoyed a sham sentence of 1 rupee due to his own caste privilege and elite connections, the SC also wasted time and public resources in convicting him of contempt for critique of SC judges, and established a pattern where someone with fewer privileges in the future can be imprisoned for similar exercises of their freedom of speech. The manner in which the SC has prioritised the targeting of individuals who critiqued the court shows the attempt to distract from the serious problem of pervasive corruption in the SC.