“I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”
These were the closing words of a rather lengthy judgment that Justice Arun Mishra wrote announcing that he will not be recusing from the matter relating to the interpretation of a provision of the Land Acquisition Act.
Justice Mishra, whose recusal was sought by some land associations on the grounds that he heads a Bench meant to re-examine a judgment that he had himself given in 2018, said that recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. if he recuses, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench/es in the future.
Senior Advocates Shyam Divan, Dinesh Dwivedi and Gopal Sankarnarayanan, appearing on behalf of the Land Associations argued that the correctness of the opinion cannot be judged by the Constitution Bench independently, as a final view has been expressed in Indore Development Authority v. Shailendra, (2018) 3 SCC 412 wherein the decision in Pune Municipal Corporation v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 has been held to be per incuriam. Thus, Justice Mishra, who has decided the matter in Indore Development Authority, is predisposed to decide the matter only in a particular way.
Noticing that there are umpteen occasions as mentioned above when Judges have overruled their own view, Justice Mishra said,
“There may not be even one Judge in this Court who has not taken a view one way or the other concerning Section 24 of the Act of 2013, either in this Court or in the High Court. If the submission is accepted, no Judge will have the power to decide such a matter on the judicial side.”
A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench. Rather, it is a consistent practice prevailing in various High Courts as well as of this Court to include the same Judge/Judges in larger Benches.
“The rule provides that a Judge who referred a case has to sit on the larger Bench to consider the reference. In the present case also, the reference has been made by me and my recusal has been sought.”
The Senior Advocates also submitted before the Court that they may feel embarrassed in arguing a proposition of law which has been dealt with in the Indore Development Authority elaborately. On this Justice Mishra wrote,
“given that arguments on recusal, spilling for over a day, could be made vociferously, in a belligerent fashion and with utmost ability, the submission that the learned counsel would feel diffident in arguing a proposition of law on merits, is difficult to accept.”
He said that the lawyers have compelled this Court time and again to change its views and to refine the law. This Court is known for not a particular view but for refining the law and that has been done with the help, ability and legal ingenuity of the lawyers to convince this Court with aplomb to correct its view. That is how the process goes on as the entire system exists for the people of this country.
He further added that if recusal is made, it would tantamount to giving room to unscrupulous litigant to have a Judge of their choice who can share the views which are to be canvassed by them. The plea cannot be termed anything other than Bench hunting, if it is said that until and unless the one which suits a litigant is found the matters are not to be argued.
Justice Mishra is heading the 5-judge Constitution bench also consisting of Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat, JJ. The other members of the Bench, writing down a separate order said,
“the view of Mishra, J, to reject the application for recusal, is not a matter that can be commented upon by us.”
They, hence, held,
“we concur with his reasoning and conclusions that no legal principle or norm bars his participation in the present Bench which is to hear the reference; the precedents cited and the practice of the court, point to the contrary, i.e. that the judge who decided a previous cause, finally, can – and very often has- participated in the later, larger bench to which such previous decision is referred for reconsideration.”
Asking if the demands for his recusal amounted to maligning the court, Justice Mishra had earlier said,
“I may be criticised for my view, I may not be a hero and I may be a blemished person but if I am satisfied that my conscience is clear, my integrity is clear before God, I will not budge. If I think I will be influenced by any extraneous factor, I will be the first to recuse here,”
Justice Mishra had said:
“Is this not maligning the court? If you had left it to me, I would have decided… But you are taking to the social media to malign me… and the Chief Justice of India?… Can this be the atmosphere of the court? It can’t be like this… Tell me one judge who has not taken a view on this. Will that mean all of us are disqualified?… This matter should not have been listed before me. But now it is before me, so the question of my integrity has arisen.”
[Indore Development Authority v. Manohar Lal, 2019 SCC OnLine 1392, decided on 23.10.2019]
(With inputs from Indian Express)