Spotlight On Recent Appointments To The Supreme Court- Justice Pankaj Mithal

In this first, of the eight-part series, we highlight the jurisprudential outlook of the eight recently-elevated Supreme Court Judges.

In the first part, we scrutinise the judicial contribution of Justice Pankaj Mithal.

Background: Justice Pankaj Mithal was born on June 17, 1961 in Meerut, Uttar Pradesh. He belongs to a family of lawyers. His father, late Narendra Nath Mithal, was a judge of the Allahabad High Court from 1978 to 1992.

He graduated in Commerce from Allahabad University in 1982 and passed LL.B from Meerut College, Meerut affiliated to Choudhary Charan Singh University in 1985.

Justice Pankaj Mithal was with the Bar Council of Uttar Pradesh in 1985. He specialised in Suits, Land acquisition, Rent control, education, labour, constitution and Service matters. He was Standing Counsel for U.P. Avas Evam Vikas Parishad Lucknow as well as for the Dr.B.R.Ambedkar University, Agra from 1990 to February 2006. On July 7, 2006, he was elevated as an Additional Judge in the Allahabad High Court, and on July 2, 2008, confirmed as a permanent Judge in the High Court.

Elevation

On October 14, 2022, he was transferred as the Chief Justice of the Rajasthan High Court. On February 6, 2023, he took oath as the Judge of the Supreme Court.

Justice Mithal will retire from the Supreme Court on June 16, 2026, and will have a tenure of just about three years and four months.

Highlights

Contempt of court

In Amit Garg and Others vs Tabassum Gazala and others, decided on July 15, 2015, (Civil Revision Nos 143, 145 and 146 of 2015), a civil suit involving property dispute was pending in the Civil Court of Allahabad. Several interlocutory orders passed in the suit were challenged before the High Court by either of the parties by filing civil revisions, writ petitions, and petitions under Article 227 of the Constitution. Justice Mithal had decided some of them. As the then Chief Justice of the High Court decided that all connected matters were to be placed before Justice Mithal’s bench, they were part-heard by Justice Mithal.

Meanwhile, Justice Mithal received a letter by speed post making scandalous allegations against the court, and expressing doubts about the integrity of the court referring to cases of the parties to the suit giving rise to these revisions. Taking a serious view, Justice Mithal found that the letter is not only scandalous, but tantamount to interfering with the course of administration of justice and the functioning of the court. It tended to lower and undermine the dignity and authority of the court, and criminal contempt on the face of the court, he said in his order. Therefore, in exercise of powers under Article 215 of the Constitution, he drew proceedings for contempt against the letter-writer, and directed the Court Registry to identify the sender, and place it before the appropriate court dealing with contempt matters, if necessary, with the approval of the Chief Justice.

Justice Mithal, however, recused from further hearing the matter, as one of the parties to the litigation did not have faith in the court as expressed in the letter.

Right to worship vs public order

In Radha Swami Satsang Sabha and Others vs Ami Adhar Singh and Ors, decided on September 13, 2010, Justice Mithal, the petitioners sought the court’s permission to pay obeisance and hold satsang of Swamiji Maharaj at Swami Bagh, Agra on specified occasions/dates on the occasion of 150th year of satsang.

In 1961, the defendants were perpetually restrained by a decree of permanent nature from causing interference with the Plaintiffs’ exercise of right to worship at the three Samadhs and the enjoyment of the properties in the suit. The defendants and the other trustees were removed from the management of the properties in the suit, and the possession of the properties directed to be handed over to the receiver appointed by the Court. But the litigation continued with the parties challenging the order on different grounds.

The Division Bench, in 1977, after examining the variety of religious texts and scriptures of the Radha Swami faith held that the visit to Samadhs is an integral part of the faith, though it may be a matter of honour or privilege for the followers to do so but that would not be a civil right which could be enforced in the court of law. Therefore, the court held that if a right cannot be enforced against the SSG, it cannot also be enforced against the Central Administrative Council who hold the property in private trust on behalf of the SSG and Acts like his shadow.

The court reasoned that something depending on the permission of the other can, by no means, be called to be a legal right. The mere fact that it is contained in the teachings that Samadhs are sacred object which could be looked upon with veneration cannot be of any help to the appellants.

Petitioners argued that the 1977 verdict was perverse and ignored certain recognised and authentic religious texts of the faith, and was not binding on the plaintiff/appellants.

Justice Mithal, however, followed judicial discipline, and said he cannot sit over the findings or ratio of law laid down by the DB in 1977. He held that under Order 1 Rule 8 Code of Civil Procedure, a decree passed in a suit is binding on all persons on whose behalf it is instituted or defended. As the plaintiff/appellants of the present suit have the common interest as the plaintiffs of the earlier suit, though the cause of action may be different and separate, they are bound by it, he held . As the Central Administrative Council turned down the request of the plaintiff/appellants on 8.8.2010, Justice Mithal declined the prayer, as the plaintiff/appellants were seeking the above permission for and on behalf of five lacs of followers.

He said that the visit and worshipping right to such a large number of persons even in groups cannot be granted in the interest of public order. It is common knowledge that such large or smaller groups in religious and cultural fringe generally turn unruly and beyond the control of the local administration; therefore, in the interest of justice, it is always better to avoid such a situation, he said. It may result in sacrificing rights of a particular community or a group of people but an individual right or the right of a particular community or a class of persons has to give way to a larger public interest and the law and order situation as well as to public order which cannot be permitted to be compromised for a much smaller group of persons, he held.

Principle of natural justice

In Ramdarshani vs District Judge, decided on April 10, 2009, he, sitting along with the presiding Judge, S.K.Singh, directed the district judge to revive the matter dealing with the application for the appointment of guardian and permission to sell the property of the mentally ill person in accordance with the Mental Health Act, 1987. The bench found that the district judge rejected the application without following the procedure prescribed under the Act, and without assigning any reason, in violation of the principles of natural justice, without giving opportunity to the appellant or as a matter of fact to any other party to contest the matter as neither any party is arrayed or was otherwise present in the proceedings before the court below or even before the High court.

In Vijay Kumar Srivastava vs Union of India, Justice Mithal, while presiding a bench of the Allahabad High Court comprising Justice Dr.Yogendra Kumar Srivastava, had on September 3, 2020, recalled the dismissal order passed in a petition filed by a grieving parent, who had lost his son to an electric shock at a Ghaziabad college during the Covid pandemic, on the ground that it did not hear the petitioner.

Preventive Detention: Mixed Approach

In Jasbir Maan vs State of U.P. and Ors, decided on April 17, 2019, he along with Justice Pradeep Kumar Srivastava, the petitioner was a builder, held under NSA, on allegations that his construction of 261 flats in village Shahberi, Gautam Budh Nagar district was illegal, as he had purchased the land unauthorizedly from the tenure-holders by using substandard material in violation of the bye-laws without getting the layout/map sanctioned. He did not change the land use changed from the agricultural to residential . Two of the buildings had collapsed, killing nine persons in 2018. There was unrest, and threat to public tranquility. He sold 169 flats without obtaining completion certificates. He was detained under section 3(2) of the Act to prevent him from selling the remaining flats. The Advisory Board confirmed the detention order. His representation against the detention was duly considered and rejected.

The petitioner was aggrieved that he was singled out in passing the detention order, as despite 72 FIRs and involvement of 262 accused, no other person was subjected to preventive detention, and there was no threat to public order.

There is no parity in illegality, Justice Mithal held, and after examining case law, said that at times, even simple acts of law and order problem on account of their gravity and the manner or circumstances in which they occur may result in disturbing the public order if they create a sense of insecurity in the public mind. In view of the above, the distinction between law and order and public order is very fine, and at times it may be overlapping.

Preventive detention is a device to offer protection to the society and the executive can always take recourse to it where it is satisfied that no other method would succeed in preventing a person from disturbing the public order situation, he held.

Court does not normally interfere with the subjective satisfaction of the Detaining Authority except in exceptional circumstances, as the Court is not empowered to substitute its own opinion for that of the Detaining Authority, he held. No exceptional circumstances have been established to permit interference with the subjective satisfaction recorded by the District Magistrate in passing the preventive detention of the petitioner, he held.

In Nishar vs State of Uttar Pradesh, Justice Mithal, sitting with the presiding Judge, Justice Sushil Harkauli, had on January 3, 2007, quashed the detention order of the petitioner, who was apprehended by the police with fake currency notes under 3 (2) of NSA. The bench recognised that the right to make a representation against an order of detention is not only a constitutional right guaranteed by Article 22(5), but is a statutory right under section 8 of the Act. As there is a corresponding duty on the authorities to dispose of the representation at the earliest , the bench held that there was inordinate delay in considering it which vitiated the continued detention.

In Jahangir Ahmad Bhat v Government of J&K and Others, Justice Pankaj Mithal ruled in favour of the accused, who was in preventive detention under section 3 of the NDPS Act, and whose challenge was dismissed by a single judge on April 25, 2022. Justice Mithal found that the accused was detained on the basis of a criminal case registered against him in 2015, in which he had been released on bail. Post his release on bail he was not involved in any other similar activity.

Justice Mithal found that the Sr.Superintendent of Police, in forming an opinion about the accused made drug peddling his profession, did not refer to any material or incident which may indicate that the accused is involved in drug peddling.

Holding that the accused is not a habitual offender involved in such an activity, to arrive at a conclusion that he is likely to repeat the offence again, Justice Mithal held that solitary criminal act which may have taken place long back cannot be a valid grounnd for detention unless there is any material to substantiate that the accused is regularly involved in similar kind of nefarious activities.

Though past conduct of a person is relevant for determining his future course of action, such a past conduct must be in close proximity in time and not too remote, he held. The length of the gap from the past act and the recording of the satisfaction that he is likely to repeat the same, is very material and relevant and if the chain is snapped and there is a long interval which is unexplained, the order of detention may not be proper.

While agreeing that the satisfaction recorded by the government in placing a person in preventive detention is not ordinarily open to challenge, but where the satisfaction on the face of it lacks material support and there is no basis for making an averment that the person concerned is indulging in the same kind of activities, the power of judicial review is always available and cannot be snatched away.

He set aside the judgment of the single judge which described the petitioner as a habitual offender and part of organised and well planned drug mafia as perverse, and set the appellant at liberty unless wanted in any other case.

In Murtaza Rashid vs Union Territory of JK and Others, (7.10.22), Justice Mithal allowed the appeal of the accused held under preventive detention. He was charged with threatening with Rampuri knife, but without disclosing any particulars as to the place or when and to whom such threats were extended. The petitioner did not make any representation against his detention on the ground that the grounds of detention were vague . He disagreed with the petitioner’s counsel that he is an illiterate person. Therefore, he disagreed that the supply of the detention order and the grounds of detention to him in Kashmiri language was imperative. Nonetheless, as the entire dossier which forms the basis of the detention order was not provided to the accused, he was denied his constitutional right to make a meaningful and a purposeful representation vitiating the order of detention, Justice Mithal held, restoring the personal liberty of the appellant.

State Protection To Married Couple

In Sheela vs State of U.P., (21.10.13) a married couple sought protection from harassment from parents and police. Justice Mithal held that the state as well as the state machinery are under a constitutional obligation to protect life and liberty of an individual and to ensure that no harm is caused to them irrespective of their age, caste, religion or status whether married or unmarried. As it is not possible to provide security cover to every individual separately, any abrasion in discharge of such an obligation can be complained of before the appropriate authorities. Reminding the authorities of their constitutional obligation is virtually a futile exercise as every authority is supposed to know their duties and obligations.

Courts should be slow in issuing directions of a futile nature. Petition, though not an abuse or misuse of the process, certainly leads to an overuse of the jurisdiction which ought not to be entertained at this stage.

In another case, Pooja vs State of U.P., (on April 12, 2013) he held that if the married party complaints of harassment, police has to ensure that no harm is caused to them merely for the reason that they have married against the wishes of their parents or against the tenets of the society provided they are found to be marriageable age and legally wedded. There is no occasion for the petitioners to invoke the writ jurisdiction of the court, as their grievance can be satisfied by making a complaint or lodging FIR with the local police or by approaching the Superintendent of Police or Senior Superintendent of Police concerned, who is supposed to take steps as per the law.

In Neetu and Others vs State of Uttar Pradesh and Others, (23.9.13), the petitioners who have married with their own free will but against the wishes of their family members have made a prayer that their married life may not be disturbed by their parents and relatives with the help of police force and that they given given adequate protection. In support of the marriage, petitioners have filed marriage certificates all issued on different dates by a former member of the Lok Adalat, and secretary of the Matrimonial disputes, Arbitration and conciliation centre, Etah. He was running a non-statutory forum aimed to bring about the settlement of matrimonial disputes rather than a forum to recognise marriages and issue certificates. He held that the marriage certificates issued by the society cannot be recognised in law, and refused relief to the petitioners with liberty to take any other appropriate remedy available to them in law. The court asked the Bar Council of UP to take necessary action against the advocate issuing such certificates in accordance with law.

In Gulfam Malik and another vs State of Uttar Pradesh, Justice Mithal, sitting with Justice Ravindra Nath Kakkar, denied protection from harassment from their family members to a transgender couple, saying state has no role to play in such private affairs.

Right to Education

In Saif Sagheer and Others vs Union of India (20.7.2015), he interpreted Section 8 of the RTE Act to hold that it casts an obligation upon the Government not only to provide free and compulsory education to every child but to ensure his admission, attendance and completion of elementary education. Therefore, attendance in school of a child is also an obligation of the State, he held.

Election Law

In Hari Om v Hakim Singh, (24.9.2007), the election to the post of Pramukh was contested because of tie, and some votes cast in favour of a winning candidate were challenged as invalid. Justice Mithal held that for rejecting the ballot papers as invalid, only the grounds specified under the relevant provisions have to be considered and taken into account and no other. He held that though free and fair election are the fountain source of democracy attempt should not be made by the returning officer or the court to reject the ballot papers as easy recourse out on the slightest pretext without making a serious attempt to ascertain the intention of the voter to reveal his identity with sufficient clarity.

Right to decent cremation

In Right to Decent and Dignified Last Rites/Cremations vs State of U.P. and others (12.10.2020), (Hathras incident - PIL Civil No. 16150 of 2020) - Justice Mithal asked whether the hasty cremation of the dead body of the victim in the odd hours of the night without revealing her face to the family members and allowing them to undertake the necessary rituals in the absence of their consent and presence would amount to the denying decent cremation in gross violation of her fundamental/human rights as enshrined in Articles 21 and 25 of the Constitution. If so, who is responsible for the same, so as to fix their accountability and liability and how the family of the victim be compensated for it, he had queried. The anxiety of the court was on two counts: first, whether there was any violation of fr of the deceased-victim and her family; and second, the larger issues involved in the context of such rights which are generally available to all residents of the state and even beyond it so that valuable constitutional rights are not compromised casually and whimsically.

In the Hathras incident, a 19-year old Dalit woman was allegedly raped by four upper-caste men on September 14, 2020. She died on September 29, 2020 at Delhi’s Safdarjung Hospital during the treatment. District Magistrate, Pravin Kumar, came under criticism after the cremation of the victim in the dead of the night near her home on September 30, 2020, with her family alleging that they were not allowed to bring the body home one last time.

On December 16, 2020, Justice Mithal, sitting with Justice Rajan Roy, proposed the viewing of the audio visual material available on record by counsel for various parties, including one or two members from victim’s family. The bench directed the CBI to file the status report pertaining to the investigation on every day the matter is fixed before the Court till the investigation on every day the matter is fixed before the Court till the investigation is completed and the report is submitted before the Court below.

On November 3, 2020, Justice Mithal and Justice Rajan Roy, while hearing the case as part of the Lucknow bench of the Allahabad High Court, expressed its concern over the Uttar Pradesh government not taking any action against District Magistrate Pravin Kumar for fairness of the probe. Would you have burnt body if victim’s family was well-to-do, the bench had asked the Hathras DM.

On October 12, 2020, the Mithal-Roy bench held that the Hathras victim was at least entitled to decent cremation, and that the state action infringed her human rights. The guiding principle of governance and administration, after independence, should be to serve and protect people and not to rule and control as was the case prior to independence,the bench had held.

In Union Territory of J&K and others vs Mohammad Latief Magrey and another, Chief Justice Mithal, sitting with Justice Javed Iqbal Wani, on July 1, 2022, directed the UT administration to allow the family of Amir Magrey, the fourth person killed in Hyderpora encounter, to perform Fatiha Khawani (religious rituals/prayers after burial) at his grave. The bench upheld the single bench direction to pay a compensation of Rs.5 lakhs to the family.

Right to possess fire arm

In Ajad Singh vs State of Uttar Pradesh and others (24.8.2015), he decided in favour of the accused. In this case, the petitioner challenged the order passed by the District Magistrate on June 19, 2009, refusing to grant fire-arm licence to him under Section 14 of the Arms Act, 1959 and the appellate order dated 5.7.2013 passed by the Commissioner of the Division affirming the same. The petitioner had allegedly kept the fire arm for more than three years with him after the death of his father, (as originally his father had the licence with a fire arm), and he was guilty of offence under section 25 of the Act. The appellate court held that he had no fundamental right to possess a fire arm licence. Justice Mithal held that the petitioner was not held guilty of any offence under section 25 by any court of law. He did not acquire the ownership of the fire arm after the death of his father, as there was a dispute about it within the family. It was only after it was given to him by other members of the family, he applied for licence. He then referred to the settled legal position that right to carry arms for self-defence is a part of Article 21 of the Constitution and that no one can be deprived of this fundamental right though may be subjected to reasonable restrictions. He directed the district magistrate to reconsider the application of the petitioner for grant of licence on its own merit in accordance with law expeditiously.

Land Acquisition Matters

In Krishan Singh and another vs State and others, (30.12.21), he, sitting with Justice Javed Iqbal Wani, held that non-payment of compensation to affected landowners was a violation of their human rights. The bench observed in the order that it is an abuse of the process of law by depriving petitioners from their valuable right to possess property.

In Abdul Rahim Bhat and others vs Government of J&K and others, (28.7.2021), Chief Justice Pankaj Mithal, sitting with Justice Sanjay Dhar, prevented the state administration from forcibly acquiring the land of the petitioner for a road-widening project, on the ground that the required notification under Section 6 of the J&K Land Acquisition Act of 1934 was not issued, after the state notified its proposal under Section 4 of the Act in 2017. Meanwhile, following the abrogation of Article 370 of the Constitution in August 2019, the 1934 Act had to give way to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, enacted by Parliament, enabling payment of higher compensation to those deprived of their lands. Chief Justice Pankaj Mithal and Justice Sanjay Dhar made it clear that as the land had not been finally acquired, the ownership/title of the land had not passed to the respondents and the petitioners were free to use in the manner they so desired.

In Villagers of Kanli-Bagh Baramulla v Union Territory of J&K and Others, Chief Justice Pankaj Mithal and Justice Sanjay Dhar, held that the state acquiring private land without payment of full compensation is not acceptable, and imposed exemplary cost of Rs.10 lakh on the union territory government.

Right to practise law is not absolute

Interpreting Section 36(3) and (4) of the Industrial Disputes Act, which disentitles a party to be represented by an advocate unless with the consent of opposite parties and leave of Labour Court, Justice Mithal held that it is not violative of Section 29/30 of the Advocates Act read with Article 19(1)(g) of the Constitution. He held that the restrictions as placed by Section 36(4) of the ID Act do not completely exclude appearance of the advocates before the Tribunal.

In Shiv Kumar Pankha vs Hon’ble High Court of Judicature at Allahabad, Justice Mithal, sitting with Justice Saumitra Dayal Singh, held that an advocate loses right to practice when he enters into full time salaried employment.

Teaching of Bhagvad Geeta

Although Justice Mithal invited controversy for his remarks as the Chief Justice of the Jammu & Kashmir and Ladakh High Court against the inclusion of the terms secular and socialist in the Preamble to the Constitution on the ground that they narrowed India’s spiritual image, he had, as the presiding Judge of the bench, also comprising Justice Saurabh Lavania, dismissed a plea which was filed in public interest seeking a direction to teach Bhagavad Gita as one of the subjects to the students of all classes, that is, basic education to higher education in the overall interest of society. However, the bench asked the petitioner to approach the appropriate authority such as Board of High School and Intermediate Education, Uttar Pradesh or any other Board or University concerned, which he considers proper for including it as a subject or as a part of the syllabus of one of the subjects.

In Masroor Ahmad and Another vs State of Uttar Pradesh, Justice Mithal, sitting with Justice Vipin Chandra Dixit, on January 1, 2020, had declined mosques’ request to instal loudspeaker for Azaan.

As Chief Justice of the J&K and Ladakh High Court, Justice Mithal, however, while presiding over a bench comprising Justice Sindhu Sharma, rejected a PIL seeking prohibition on the illegal practice of slaughtering of animals on the basis of superstition and in the name of religious sacrifices. The bench noted that ordinarily, the courts are slow in interfering in religious matters or with sentiments based upon religion or on the practice of any community.

Scope of PILs

Justice Mithal, while presiding over a bench comprising Justice Saurabh Lavania, observed that the filing of writ petition, praying for directions to create awareness regarding certain laws is not proper, and that such petitions are filed only for the sake of popularity.

Vicarious responsibility

In Union Territory of J&K vs NHRC and others, Chief Justice Pankaj Mithal, sitting with Justice Sindhu Sharma, held that until the state is held vicariously responsible for menace of spurious drugs, its department would never swing into action. The bench, in this case, upheld the order for payment of Rs.300000 each to the next of kin of 10 children who lost their lives due to consumption of a spurious cough syrup in the state in December 2019.

Controversy

From January 4, 2021 to October 13, 2022, Justice Mithal served as the Chief Justice of Jammu & Kashmir and Ladakh High Court. During this term, Justice Mithal’s participation at a seminar organised by the Akhil Bharatiya Adhivakta Parishad, an organisation of lawyers aligned to RSS, on December 5, 2021 at Jammu created controversy. He reportedly said that the inclusion of the terms `secular’ and ‘socialist’ in the Preamble to the Indian Constitution had narrowed India’s spiritual image. The controversy, however, soon died down.

[Graphics by Awstika Das]