Judges

Case BriefsSupreme Court

Supreme Court: Activating the “dormant” Article 224A of the Constitution, the 3-judge bench of SA Bobde, CJ and Sanjay Kishan Kaul and Surya Kant, JJ has issued some general guidelines for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent.

While the discretion of the Chief Justice of the High Court under Article 224A is not, the Court stated that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments.

GUIDELINES

i. Trigger Point for activation of Article 224A:

The Trigger Point cannot be singular and there can be more than one eventuality where the it arises

  1. If the vacancies are more than 20% of the sanctioned strength.
  2. The cases in a particular category are pending for over five years.
  3. More than 10% of the backlog of pending cases are over five years old.
  4. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.
  5. Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

ii. Embargo Situation:

If recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise.

As per data, there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021; seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline.

“Thus, the parameter we have adopted is that, at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A.”

iii. Pre-recommendation process:

  1. Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog.
  2. The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court.

iv. Methodology of Appointment:

Para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution must be followed to see the progress made and impediments, if any. However, since the Judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB or other agencies would not arise in such a case, which would itself shorten the time period.

v. Time to complete the process:

The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required to complete the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution of India. Since there are a number of aspects not required to be adverted to for appointment under Article 224A, a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance for such appointment.

vi. Tenure of Appointment:

The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment should be for a period between two to three years.

vii. Number of Appointments:

At least, for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court.

viii. Role of ad hoc Judges:

  • More than five year old cases to be assigned to the ad hoc Judges so appointed. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, keeping the primary objective to deal with long pending arrears in mind.
  • A division bench of ad hoc Judge and sitting Judge in matters to be heard by Division Bench not to be constituted. The Division Bench, at present, may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them.
  • Because of the very nature of the profile and work to be carried out by ad hoc Judges, it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance.

ix. Emoluments and Allowances:

“For all practical purposes the ad hoc Judge would receive the same emoluments, allowances and benefits as are admissible to the permanent/additional Judges.”

  • The emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension.

“This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms of the aforesaid guidelines.”

  • Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances.

“… it is a misconceived notion that there will be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in, the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and, thus, the existence of vacancies actually results in the savings for the State Government(s), which would otherwise be amount expended as their allowances and perks.”

  • All allowance/perks/perquisites as are admissible to the permanent/additional Judge(s) would be given to the ad hoc Judge(s).
  • As far as housing accommodation is concerned, either the rent-free accommodation should be made available or the housing allowance should be provided on the same terms and conditions.

The Court concluded with the following words,

“We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring/retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise, we will endeavour to iron them out.”

[Lok Prahari v. Union of India, WRIT PETITION (C) NO. 1236 OF 2019, decided on 22.04.2021]

Appointments & TransfersNews

President appoints the following ten Judges to be the Permanent Judges of the Allahabad High Court:

  • Ali Zamin
  • Vipin Chandra Dixit
  • Shekhar Kumar Yadav
  • Ravi Nath Tilhari
  • Deepak Verma
  • Gautam Chowdhary
  • Shamim Ahmed
  • Dinesh Pathak
  • Manish Kumar
  • Samit Gopal

Ministry of Law and Justice

[Notification dt. 23-03-2021]

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium has approved the proposal for elevation of the following Advocates as Judges in the High Courts:

High Courts

Name

Madhya Pradesh

 ·       Dr Vivek Sharan

·      Nidhi Patankar

·       Pranay Verma
Punjab and Haryana ·       Shri Vikas Bahl
Jammu and Kashmir

·      Shri Rahul Bharti

Supreme Court of India

Appointments & TransfersNews

Collegium Statement

Supreme Court collegium reiterates its recommendations for the elevation of the following Advocates as Judges in High Courts:

High Courts

Name
Kerala Shri Viju Abraham
Kerala Shri Mohammed Nias C.P. and Shri Paul K.K.
Karnataka Nagendra Ramachandra Naik
Himachal Pradesh Shri Satyen Vaidya

Supreme Court of India

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium has approved the proposal for elevation of Shri A. Badharudeen, Judicial Officer as Judge of the Kerala High Court.

 

 

 

Supreme Court of India

Appointments & TransfersNews

Collegium Statement

On 5th March 2021, Supreme Court Collegium approved the proposal for the appointment of the following Additional Judges as Permanent Judges of Allahabad High Court:

  1. Shri Justice Ali Zamin,
  2. Shri Justice Vipin Chandra Dixit,
  3. Shri Justice Shekhar Kumar Yadav,
  4. Shri Justice Ravi Nath Tilhari,
  5. Shri Justice Deepak Verma,
  6. Shri Justice Gautam Chowdhary,
  7. Shri Justice Shamim Ahmed,
  8. Shri Justice Dinesh Pathak,
  9. Shri Justice Manish Kumar, and
  10. Shri Justice Samit Gopal.

Supreme Court of India

Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J., addressed the instant petition against the order of State whereby the petitioner’s application for voluntary retirement was treated as an application for resignation.

On 31-10-2005 the petitioner filed an application to the Secretary, Health Department, stating therein that due to certain personal and family reasons the petitioner was not in a position to discharge his official duty with responsibility. Hence, he may be permitted to retire voluntarily with effect from 01-02-2006. Since, the petitioner had not completed 20 years of service for retiral benefit, the petitioner made further prayer in the said application that the intervening period between 01-11-2005 to 31-01-2006 be treated as a period spent on extra-ordinary leave.

The technical difficulty in allowing voluntary retirement was that the petitioner had not completed 30 years qualifying service or attained 50 years of age on the date of application for voluntary retirement as required by Rule 74(b) of the Bihar Service Code. The respondent initiated a departmental proceeding against the petitioner on the ground that the petitioner was absent from duty without any permission of the authority and was reportedly engaged in services of some other State. Consequently, the respondent treated the application of the petitioner as an application of resignation without any rhyme or reason or any such averment in the application.

Noticing that the authorities did not take any decision on the prayer of the petitioner for voluntary retirement made in the year 2006 till 2013 and in 2013 the petitioner was fulfilling the conditions for voluntary retirement as per Rule 74(b) of the Bihar Service Code and had already completed 50 years of his age for qualifying to make prayer for voluntary retirement., the Bench stated,

“Either the authorities should have accepted the prayer of the petitioner or would have rejected the same in toto but they could not have treated the same as application of resignation.”

Therefore, it was held that the act of respondent suffered from arbitrariness and takes away the valuable legal right of the petitioner which made it unsustainable in law.  Hence, the impugned order was quashed. The respondents were directed to treat the prayer of the petitioner as prayer for voluntary retirement with all the retiral benefits according to law which would be effective from the date of the impugned order, i.e., 02-01-2013. [Vinoy Singh v. State Of Bihar, CW No. 1556 of 2019, decided on 19-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Appointments & TransfersNews

Appointment of Judges

President appoints S/Shri (i) Murali Purushothaman (ii) Ziyad Rahman Alevakkatt Abdul Rahiman (iii) Karunakaran Babu and (iv) Dr. Kauser Edappagath, to be Additional Judges of the Kerala High Court.

Read more about Judges:

Murali P., LL.B., was enrolled as an Advocate on 09.03.1991. He has 28 years of experience, practicing in High Court of Kerala from 11.03.1991 to 16.07.2019 in Election Law, Family Law, Labour Law, Cooperative Society Law, Contract Law, Constitutional Law and Service Law. He has specialisation in Election and Service Law. He was Standing Counsel for the State Election Commission, Delimitation  Commission of Kerala, Admission and Fee Regulatory Committee for Self Financing Professional Colleges and as Government Pleader in the High Court of Kerala in 2001.

Ziyad Rahman A.A, BA, LL.B., has 22 years of experience, practicing in the High Court of Kerala and also appeared before in Subordinate Courts, Tribunals in Constitutional, Civil, Land Laws, Electricity Criminal, Banking, Motor Vehicles, Insurance, Labour, Company, Consumer, Administration, Municipality, Taxation, Rent Control law matters and has specialisation in Electricity Laws, Motor Vehicle Laws, Insurance Act, Employees Compensation Act, Constitutional matters.

Shri K. Babu, M.A (Economics), LL.B, LL.M., joined Judicial Service on 21.05.2009 as Additional District Judge-I and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District Judge, Thiruvanthapuram in addition appointed as Chairman of the Administrative Committee of Sree Padmanabha Swamy Temple by the Hon ‘ble Supreme Court of India w.e.f. 19.11.2018.

Dr. Kauser Edappagath, BA (Law), LL.B, LL.M, Ph.D., joined Judicial Service on 21.05.2009 as Additional District and Sessions Judge and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District and Sessions Judge/ State Transport Appellate Tribunal, Ernakulum since 08.01.2018.

Link to the notification: Order of Appointment

Ministry of Law and Justice

[Notification dt. 22-02-2021]

Appointments & TransfersNews

Four Additional Judges elevated as Judges in Karnataka High Court

President appoints S/Shri Justices (1) Singapuram Raghavachar Krishna Kumar (2) Ashok Subhashchandra Kinagi (3) Suraj Govindaraj and (4) Sachin Shankar Magadum, Additional Judges of the Karnataka High Court, to be Judges of the Karnataka High Court.

Read more about the Judges:

Shri Justice Singapuram Raghavachar Krishna Kumar, B.A.L., LL.B, was enrolled as an Advocate on 29.08.1992. Since then he has practiced in Karnataka High Court and Subordinate Courts at Bangalore in civil, constitutional, matrimonial, company, consumer disputes and arbitration matters. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09,2021.

Shri Justice Ashok Subhash Chandra Kinagi, B.Sc., LL.B., was enrolled as Advocate on 02.06.1995. He practiced in Karnataka High Court in civil, labour, service and constitutional matters. He was appointed as Central Government Standing Counsel during 2008 2012. He also worked as part time Lecturer in a Law College from July 1997 to March 2006. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Shri Justice Govindaraj Suraj, B.A., LL.B., was enrolled as Advocate on 23.06.1995. He practiced in civil, constitutional, company and arbitration matters in Karnataka High Court, various High Courts, Tribunals and Supreme Court and before various Tribunals. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Shri Justice Sachin Shankar Magadum, B.Sc., LL.B., has practiced in Karnataka High Court at Bangalore and at Dharwad Bench in civil, criminal, constitutional, service and matrimonial matters. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Link to the Notification: Order of Appointment

Ministry of Law and Justice

[Notification dt. 22-02-2021]

Appointments & TransfersNews

Appointment of Judges

President appoints S/Shri (i) Jasmeet Singh and (ii) Amit Bansal, to be Judges of the Delhi High Court.

Shri Jasmeet Singh, B.Com (Hons), LL.B, has 27 years of experience, practicing Delhi High Court and Subordinate Courts from 1992 onwards. He has been practising in Constitutional, Civil, Labour, Service, and Matrimonial covering all branches of Law. He has specialization in Service and Civil Law.

Shri Amit Bansal, B.Com. (Hons), LL.B, LL.M, has specialization in Education Laws, Arbitration Laws, Indirect Taxes Law, Service Law. He served as Senior Standing Counsel, Central Board of indirect Taxes and Customs, Standing Counsel and Legal Advisor, Central Board for Secondary Education (CBSE) from 2004, National Testing Agency (NTA), Additional Standing Counsel, University of Delhi, in the Delhi High Court from 2008 and Additional Standing Counsel, NDMC from 1999-2005.

Link to the notification: Order of Appointment

Ministry of Law and Justice

Notification dt. 22-02-2021

Appointments & TransfersNews

President appoints Justice Puligoru Venkata Sanjay Kumar, Judge of the Punjab and Haryana High Court, to be the Chief Justice of Manipur High Court.

NOTIFICATION

Ministry of Law and Justice

[Notification dt. 12-02-2021]

Appointments & TransfersNews

President appoints Pushpa Virendra Ganediwala, to be an Additional Judge of the Bombay High Court for a period of 1 year with effect from 13-02-2021.

Notably, Justice Ganediwala authored the following two controversial Judgments:

 

NOTIFICATION

Ministry of Law and Justice 

[Notification dt. 12-02-2021]

Know thy Judge

“With human lives pausing due to the COVID-19 pandemic, viral photos show that nature is fighting back. With the flora returning and fauna thriving, it is evident that the pitiable state of global ecology is not a state of our geographical inheritance.”

– Justice Surya Kant[1]

Justice Surya Kant was born on February 10, 1962 in Hisar (Haryana). He earned his LLB degree in 1984 from Maharishi Dayanand University, Rohtak. He began practicing in the Punjab and Haryana High Court in 1985 and designated as Senior Advocate in March, 2001. [2]

Justice Kant held the office of Advocate General, Haryana till his elevation as a permanent Judge to the Punjab and Haryana High Court on 09-01-2004. He become Chief Justice of Himachal Pradesh High Court on 03-10-2018 and then elevated as a Judge of the Supreme Court of India on 24-05-2019.[3]

Notable Judgments at Supreme Court

Shah Faesal v. Union of India, (2020) 4 SCC 1

In a writ petition filled under Article 32 of the Constitution of India pertaining to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India, a Full judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ, held that no cause was made out to refer the matter to a larger bench as there is no conflict between the judgments in the Prem Nath Kaul v. State of J & K, AIR 1959 SC 749 and the Sampat Prakash v. State of J & K, AIR 1970 SC 1118. The Court observed that

“Judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning.”

Read More…

Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn., (2020) 3 SCC 52

The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, while framing seven issues in the Sabrimala reference, opined that the same can be refered to a larger bench in its Review jurisdiction.

Read More…

Ravi v. State of Maharashtra, (2019) 9 SCC 622

“A civic society has a `fundamental’ and `human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements.”

A 3-judge bench comprising of R. F. Nariman, Surya Kant* and R. Subhash Reddy JJ., following the judgment in the case of California v. Ramos, 463 U.S. 992 where it was observed that “qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination” and upheld (2:1) the death penalty awarded to an accused for rape and murder of a two- year old girl.

The Court observed that the Sentencing Policy needs to strike a balance between (a) deterrent effect and (b) complete reformation for integration of the offender.

 “The Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12years without murder of the victim, `death penalty’ can also be imposed.”

The Court shedding the light on duty of the Court and expectation of the people of the country, observed that

“The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterent punishment that commensurate(s) with the gravity of offence.”

Read More…

Rajesh Dhiman v. State of H.P., (2020) 10 SCC 740

“If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account.”

A 3-judge bench comprising of NV Ramana, Surya Kant,* Hrishikesh Roy, JJ., analysing the issues (1) whether bias was caused by complainant also being the investigating officer, (2) whether alternate version has been established and what is the effect of lack of independent witnesses and (3) whether High Court erred in reversing acquittal in appeal, held that firstly, the mere fact that the investigating officer was also the complainant would not entitle an accused to acquittal and that it was necessary to demonstrate either actual bias or real likelihood of bias. Secondly, if alternate version has been established, the evidence given must only be so conclusive that all reasonable doubts are removed from the mind of an ordinary person and in the present case, the appellant failed to make out a case with alternate version. Moreover, it was held that non­-examination of independent witnesses would not ipso facto entitle one to seek acquittal. Thirdly, the Court held that High Courts could reverse acquittals and award appropriate sentence, including where there are patent errors of law, grave miscarriage of justice, or perverse findings of fact.

Raveen Kumar v. State of H.P., 2020 SCC OnLine SC 869

“The Supreme Court in exercise of its powers under Article 136 ordinarily examines only whether the High Court has failed to correctly apply principles governing appeals against acquittal.”

A 3-judge bench comprising of NV Ramana, Surya Kant,* Hrishikesh Roy, JJ., relying on the judgment in the case of Hira Singh v. Union of India: 2020 SCC OnLine SC 382, held that for the purpose of sentencing and determining whether the threshold of ‘commercial quantity’ was met, the total quantity of the mixture, including the neutral substance is relevant.

The Court clarifying the moot point whether High Court can set aside a finding of acquittal, held that there was no bar on a High Court set aside a finding of acquittal by a lower court.

“There is no difference of power, scope, jurisdiction or limitation under the CrPC between appeals against judgments of conviction or of acquittal. An appellate court is free to reconsider questions of law as well as fact, and re appreciate the entirety of evidence on record. There is, nonetheless, a self-restraint on the exercise of such power, considering the interests of justice and the fundamental principle of presumption of innocence. In practice, appellate courts are reluctant to interfere with orders of acquittal, especially when two reasonable conclusions are possible on the same material.”

The Court also opined that courts should be cautious while relying on any evidence which the witness had not been confronted with despite an opportunity to do so.

Kirti v. Oriental Insurance Company Ltd., 2021 SCC OnLine SC 3

“…the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome.”

While deciding a motor vehicle claim and taking account into gendered nature of housework, a 3-judge bench of NV Ramana,* SA Nazeer and Surya Kant,* JJ., has increased the total motor accident compensation of Rs 22 lakhs awarded by the Delhi High Court to Rs 33.20 lakhs and held that “any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience.”

[Conception that housemakers do not add economic value to the household is “a problematic idea”; Future prospect must be granted in case of motor accident of a non-earning victim: SC] Read More…

[Can Subsequent Death Of A Dependent Be A Reason For Reduction Of Motor Accident Compensation? Supreme Court Answers] Read More…

Nimay Sah v. State of Jharkhand, 2020 SCC OnLine SC 982

While acquitting, the appellant who was convicted under Section 498-A read with 34 IPC for the death of his brother’s wife, a division bench of NV Ramana* and Surya Kant, JJ., held that apart from the vague allegations there is no substantial proof to show beyond a reasonable doubt that the appellant was genuinely liable.

“…on consideration of the oral testimonies of the witnesses, the ingredients of Section 498-A IPC have not been proved against the appellant-accused by the prosecution at the standard of beyond reasonable doubt.”

Read More…

Rohtas v. State of Haryana, 2020 SCC OnLine SC 1014

“The duty of the prosecution is to seek not just conviction but to ensure that justice is done. The prosecution must put forth the best evidence collected in the investigation.”

While deciding the criminal appeals, a 3-judge bench of NV Ramana, Surya Kant* and Aniruddha Bose, JJ., held that usually the ‘common intention’ is indirectly inferred from conduct of the individuals and rarely through direct evidence and that the appellants are individually guilty for the offence of attempted murder, without the aid of Section 149 IPC because

The Court also explained the difference between Sections 34 and 149 of the IPC and held that

“Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.”

Read More…

Pravin Kumar v. Union of India, (2020) 9 SCC 471

“Judicial review is an evaluation of the decision ­making process and not the merits of the decision itself.”

While dismissing the appeal, a 3-judge bench of NV Ramana, SA Nazeer and Surya Kant,* JJ., held that the employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding.

The Court while analysing the issue whether strict rules of evidence can be applied to disciplinary proceedings, held that strict rules of evidence and procedure of a criminal trial are inapplicable to disciplinary proceedings. The Court also observed that though strict rules of evidence are inapplicable to disciplinary proceedings, but sometimes under certain circumstances it becomes necessary and enquiry officers put questions to witnesses in such proceedings in order to discover the truth

Discussing the scope of Judicial Review in service matters, the Court opined that

“Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.”

Read More…

Jitendra Singh v. Ministry of Environment, 2019 SCC OnLine SC 1510

“Protection of such village-commons is essential to safeguard the fundamental right guaranteed by Article 21 of our Constitution.”

A Division Bench of Arun Mishra and Surya Kant,* JJ., while deciding an appeal for forcible possession of a common, local village-pond by the respondent industrialists, held that ponds are public utilities meant for common use and that schemes which extinguish local water bodies albeit with alternatives are violative of Constitutional mandate provided under Article 21 of the Constitution of India therefore are liable to be struck down.

“Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.”

CBI v. Sakru Mahagu Binjewar, (2019) 20 SCC 102

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought to be done save in the rarest of rare case when the alternative option is unquestionably foreclosed.”

A 3-judge bench of of Arun Mishra, BR Gavai and Surya Kant,* JJ., dismissed an appeal filed by the CBI challenging commutation of death penalty by the High Court in a murder case.

Relying on Swamy Shraddananda v. State of Karnataka: (2008) 13 SCC 767, the Court held that Section 57 IPC does not in any way limit the punishment of imprisonment for life to a term of 20 years. Therefore, he upheld the commutation of a death penalty to 25-years ‘actual imprisonment’.

In Re: Contagion of COVID-19 Virus in Prisons, 2020 SCC OnLine SC 344

“Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”

A 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ., noticing the issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19), directed that the States/Union Territories to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.

Read More…

Bhagwan Singh v. State of Uttarakhand, 2020 SCC OnLine SC 336

“A gun licensed for self-protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents.”

Partly allowing the appeal, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., opined that celebratory firing of guns licensed for self protection needs to stop.

The Court held that

“appellants cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.”

Read More…

Closure of Mid-Day Meal Scheme, In re, (2020) 12 SCC 213

“While dealing with one crisis, the situation may not lead to creation of another crisis.”

Taking Sou Motu cognizance on non-availability of mid-day meals for children due to the closure of schools due to coronavirus spread, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., directed that the States to come out with a uniform policy with the measures preventing spread of COVID-19 and also ensuring that the schemes for providing nutritional food to the children and nursing and lactating mothers are not affected.

Read More…

Prahaladbhai Jagabhai Patel v. State of Gujarat, 2020 SCC OnLine SC 109

Relying on the judgment in the case of Babu Singh v. State of U.P: (1978) 1 SCC 579, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., in the interests of justice to directed to release the appellants on bail.

The Court observed that

“punitive harshness should be minimized and restorative devises to redeem the man, even through community service, meditative drill, etc. should be innovated.”

Read More…

In re: Assessment of the Criminal Justice System in response to Sexual Offences, 2019 SCC OnLine SC 1654

“The need for speedy trial of the cases relating to offence of rape has been emphasized again and again this Court.”

Taking Sou Motu cognizance on assessment of the criminal justice system in response to sexual offences, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., noted that while the Nirbhaya gang rape case of 2012 has shocked the conscience of the nation but “the Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.”

The Court has called for records and status reports from all the States on various aspects of the criminal justice system in cases of sexual offences and held that previous sexual experience and in effect habituation to sexual intercourse is now irrelevant for the purpose of medical examination.

“Per-Vaginum examination commonly referred to as ‘Two-finger test’ has been held to be of no consequence and violative of the dignity of woman.”

The Court further held that, Forensic examination and report play important role during investigation as well as trial for linking the culprit with crime. Similarly, Medical treatment and examination of victim also plays a very important role.

“The sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape.”

“Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial.”

Read More…

Manoharan v. State, 2019 SCC OnLine SC 951

“There can be no doubt that today’s judgment is in keeping with the legislature’s realisation that such crimes are on the rise and must be dealt with severely.”

Considering the serious nature of the crime involving rape and murder of 2 children, A 3-judge bench comprising of RF Nariman,* Surya Kant and Sanjiv Khanna,* JJ., with 2:1 verdict upheld the death sentence confirmed by the High Court.

Read More…

Manoharan v. State, (2020) 5 SCC 782

Dismissing the review petition filed by Appellant to review it’s 2:1 verdict awarding death sentence, a 3-judge bench of RF Nariman, Surya Kant* and Sanjiv Khanna,* JJ., held that the dissent by one Judge is not a bar for upholding death penalty.

The Court held that in the present case the appellant misused societal trust and the crime was not a crime a passion but a well crafted crime. The Crime committed by the Appellant were grave and shock the conscience of this Court and society that we cannot commute the sentence and without any doubt it will fall under rarest of the rare category.

 “It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist.”

Agreeing with the Justice Surya Kant on the dismissal of review petition and upholding of the conviction of the accused, Justice Khanna held that there is no good ground and reasons to review his observations and findings in the minority judgment.

Read More…

Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC 437

“There cannot be any hard and fast rule for balancing the aggravating and mitigating circumstances. Each case has to be decided on its own merits.”

A 3-judge bench comprising of R. F. Nariman, Surya Kant and R. Subhash Reddy* JJ., placing reliance on the case of Sushil Murmu v. State of Jharkhand: (2004) 2 SCC 338, opined that this case fulfils the test of rarest of rare cases as it involved gruesome murder for human sacrifice of 2 yr old boy.

Justice Reddy observed that

“Having regard to age of the accused, they were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation.”

The Court also placed emphasised on extra-judicial confession and opined that

“It is true that extrajudicial confession, is a weak piece of evidence but at the same time if the same is corroborated by other evidences on record, such confession can be taken into consideration to prove the guilt of the accused.”

Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200

“As in all crimes, mens rea has to be established.”

Allowing a Criminal appeal, a 3-bench of NV Ramana, Surya Kant and Hrishikesh Roy,* JJ., overturned the conviction of the appellant under Section 306 of the Indian Penal Code 1860.

The Court observed that to make out the case of abetment under Section 107 IPC, the accused should instigate a person either by act of omission or commission but in the present case there is no direct evidence to show that cruelty was committed by the husband or the in-laws or particular hope or expectation of the deceased was frustrated by the husband or there was wilful neglect of the appellant which led to the suicidal death.

The Court reiterated the necessary ingredients as set out in SS Chheena v. Vijay Kumar Mahajan (2010) 12 SCC 190 and relied on Mangat Ram v. State of Haryana (2014) 12 SCC 595 and observed that

“To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous.”

The Court opined that there is no evidence of any overt act or omission on part of the appellant and the trial court and the High Court had erred in relying on conjecture and speculation in deciding the appellant’s guilt i.e. abetting the suicide of his wife.

Read More…

Karulal v. State of M.P., 2020 SCC OnLine SC 818

“The testimony of the related witness, if found to be truthful, can be the basis of conviction”

Dismissing a appeal, a 3-bench of NV Ramana, Surya Kant and Hrishikesh Roy,* JJ., upheld the conviction of the appellants under Section 148, 302 r/w 149 IPC.

The Court relied on the judgement in the case of Dalip Singh v. State of Punjab: AIR 1953 SC 364, Khurshid Ahmed v. State of J & K: (2018) 7 SCC 429 and Sushil v. State of U.P.: 1995 Supp (1) SCC 363 and  opined that

“…The testimony of the related witness, if found to be truthful, can be the basis of conviction (…) If the witnesses are otherwise trustworthy, past enmity by itself will not discredit any testimony. In fact the history of bad blood gives a clear motive for the crime. Therefore this aspect does not in our assessment, aid the defence in the present matter.”

The Court while discussing the about the witnesses not supported the prosecution case and turning hostile, stated that

“Some witness may not support the prosecution story for their own reasons and in such situation, it is necessary for the Court to determine whether the other available evidence comprehensively proves the charge.”

Notable Judgments at High Court

Kulwinder Singh v. State of Punjab, 2007 SCC OnLine P&H 792

“The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice.”

Over-ruling the majority view in the case of Dharambir v. State of Haryana: 2005 SCC OnLine P&H 190 and approving the minority view expressed by V.K. Bali, J., a 5-judge bench comprising of Vijender Jain,* C.J., P. Sathasivam, Rajive Bhalla, Surya Kant and Mahesh Grover, JJ., while deciding the issue “Whether the High Court has the power under Section 482 of the Cr.P.C. to quash the criminal proceedings or allow the compounding of the offences in the event of the parties entering into a compromise in the cases which have been specified as non-compoundable offences and in particular, in view of the provisions of Section 320 of the Cr.P.C.?”, held that the compromise is an essential condition for harmony in the society, it is the soul of justice and if the power provided under Section 482 CrPC is used to enhance such a compromise to reduces friction then it truly is “finest hour of justice”.

“The power under Section 482 of the CrPC cannot be a hostage to one class or category of cases. That would be a complete misconstruction of the intent of the Legislature, who placed its utmost faith in the inherent power of the High Court to break free the shackle of other provisions of the Code, to give effect to any order under it or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The wide amplitude of this provision of law cannot be diminished by any myopic interpretation and any straightjacket prescription.”

Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479

Justice Surya Kant* while deciding whether jail inmates have a right to have a conjugal life and procreation within the jail premises and whether such right comes under Article 21 of the Constitution of India, dismissed the petition on the ground that the present jail infrastructure does not permit conjugal visits in jail but the petitioner have sufficient condition to opt for parole.

Discussing the role of Court regarding protecting the rights of prison-inmates, the Court observed that

“the Judiciary as the principal executor and promoter of the rule of law has to have major stakes in respect of the conditions prevailing in the prisons. The duty of the Courts towards jail reforms has become heavier than before after the enforcement of our Constitution as Article 21 guarantees dignified life to one and all including the prison-inmates.”

The Court held that the right to procreation survives incarceration and the right to life and personal liberty under Article 21 of the Constitution of India grants inmates the right to have conjugal visits or avail of artificial insemination.

“The right to conjugal visits or procreation or for that matter the right to secure artificial insemination as a supplement, are also, thus, subject to all those reasonable restrictions including public order, moral and ethical issues and budgetary constraints which ought to be read into the enjoyment of such like fundamental right within our Constitutional framework.”

Read More…

Viresh Shandilya v. Union of India, 2004 SCC OnLine P&H 1054

In a PIL filed under Article 226 of the Constitution of India regarding handing over the investigation of the “Burail Jail Break Case” to the CBI, a Division Bench of Binod Kumar Roy, C.J. and Surya Kant,* J., declined to accept a blanket ban on these facilities as it would deprive not only the majority of inmates who are mere “under-trials” from the amenity of viewing TV but also will cause adverse effects upon the reformatory methods required to be adopted in the model jails even in relation to the ‘convicts’.

“In our view, the “under-trials” as well as the “prisoners” lodged in the Model Jail Burail too have a right to information and the television can play a crucial role in that regard and to bring them in the mainstream of the civilized society, it will be too hard and anti-thesis of international conventions if a complete ban on viewing of TV is imposed.”

Madan Lal v. State of H.P., 2018 SCC OnLine HP 1495

Examining the issue whether the petitioner, as an interim measure be allowed the basic amenities of water and electricity, a Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., reiterated that right to water and electricity supply is an integral part of right to life under Article 21 of the Constitution of India.

“Potable water or electricity are integral part of Right to Life within the meaning of Article 21 of the Constitution of India. These are basic necessities for human being and can well be termed as essentials of human rights.”

Read More…

Sharwan Kumar v. State of H.P, 2018 SCC OnLine HP 1695

Considering the petitioner’s concern regarding disposal of waste of the slaughtered birds or to ensure that it does not cause any nuisance to the adjoining area, a Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., directed the respondent authorities to ensure that the prescribed rules and conditions for setting up a slaughterhouse are meticulously complied with.

Read More…

Anil Bansal v. State of H.P., 2018 SCC OnLine HP 1617

In a PIL filed under Article 226 of the Constitution of India regarding non-availability of legal aid to inmates of the jail, a Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., directed the respondent authorities to provide legal aid with immediate effect to jail inmates.

Read More…

Subhash Chand v. State of Haryana, 2007 SCC OnLine P&H 627

A 3-judge bench comprising of Vijender Jain, C.J., Rajive Bhalla and Surya Kant,* JJ., held that the refusal to accept the highest bid cannot foreclose the right of the highest bidder to put the action of the competent authority to judicial scrutiny, however, in those cases heavy onus will lie on the petitioner to establish his allegations as the State action shall always be presumed to be in accordance with law.

“The highest bidder who had a legitimate expectation to acquire ownership of the property, unless his bid was found to be suffering from any legal infirmity, has an indefeasible right to knock at the doors of an appropriate forum including a Constitutional Court and to question the legality of the decision of the competent authority on grounds like it being contrary to the Statute or the rules or the Constitution.”

The Court also held that the State Government cannot refuse to confirm the highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons.

†Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

[1] Webinar on Environment & the Economy: Re-Imagining Key Concepts and Precepts – https://www.scconline.com/blog/post/2020/08/02/supreme-court-justice-surya-kant-speaks-on-can-nlu-shimla-webinar-on-environment-the-economy/

[2] https://main.sci.gov.in/chief-justice-judges

[3] https://www.scobserver.in/judges?id=surya-kant

Op EdsOP. ED.

“I am sorry, please recuse me before I hurt myself.”

I. Introduction

a) The principle of judicial independence is designed to protect the system of justice and the rule of law as well as to maintain public trust and confidence in the courts. Its existence in any legal system, however, depends on concrete institutional arrangements. Various scholars have identified essential ingredients which ensure judicial independence in a legal system: firstly, insularity, secondly, impartiality and thirdly, authority. An independent judiciary surrounded by powerful executive forces remains insulated from there destructive elements maintaining its individual, distinct and independent identity. The elements of “insularity” for an independent judiciary include: (i) appointment and removal of Judges; (ii) security of tenure; (iii) protection of salary; and (iv) administrative and financial autonomy. Impartiality is another important facet of judicial independence where Judges are supposed to take decision only on the basis of law and fact and without any fear or favor. Finally, authority which includes element of public confidence, its relation with the media, etc.

b) Alan Rose, a former President of the Australian Law Reform Commission once observed: justice, and the appearance of that justice being delivered, is fundamental to the maintenance of the rule of law. Justice implies – consistency, in process and result, that is, treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness, by allowing parties the opportunity to prevent their case and to answer contrary allegations, and unbiased neutral decision-making; dignified, careful and serious decision-making and an open and reviewable process[1].

c) One essential component of equal justice under the law is a neutral and detached Judge to preside over the court proceeding. Public confidence in the legal system is maintained when a Judge has no interest in the parties, advocates or subject-matter of litigation. To disqualify or remove oneself as a Judge over a particular proceeding because of one’s conflict of interest or recusal or the Judge’s act of disqualifying himself or herself from presiding over a proceeding, is based on the maxim that Judges are charged with a duty of impartiality in administering justice.

d) Judicial impartiality is a significant element of justice. Judges should decide legal disputes free of any personal bias or prejudice. As a result of a conflict of interest, a Judge may be unable to maintain impartiality in a case and thus should be disqualified. Even where a Judge is impartial, but appears not to be, recusal is necessary[2].

It is one of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge. It all started with a latin maxim nemo judex in re sua which means literally — that no man shall be a Judge in his own cause. There is another rule which requires a Judge to be impartial. The theoretical basis is explained by Thomas Hobbes in his Eleventh Law of nature:  If a man be trusted to judge between man and man, it is a precept of the law of nature that he deals equally between them. For without that, the controversies of men cannot be determined but by war. He therefore, said that is partial in judgment doth what in him lies, to deter men from the use of Judges and arbitrators; and consequently, against the fundamental law of nature, is the cause of war[3]. 

e) A Judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist. He should recuse himself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that he might not bring an impartial mind to the resolution of the question he is required to decide. The standard for recusal is one of “real and not remote possibility”, rather than probability. The test is a two-stage one. The Judge must consider firstly, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the Judge might decide the case other than on its merits; and secondly, whether there is a “logical and sufficient connection” between those circumstances and that apprehension[4].

II. The concept of recusal

a) It is a basic precept that no one should be a Judge in his or her own case. Courts must keep the promise of dispensing fair and impartial justice, and must decide controversies without bias. The practice of recusal i.e., when and how an individual justice should be excluded from participating in a specific case, where he has some interest—has been a regular topic of passionate debate since the founding in the United States of America and United Kingdom[5].

b) Recusal is “removal of oneself as a Judge or policymaker in a particular matter, especially because of a conflict of interest”[6].

c) The doctrine of judicial recusal enables, and may require, a Judge who has been, appointed to hear and determine a case to stand down from that case and leave the disposition of it to another colleague or colleagues. The judicial oath in England and Wales, widely echoed in the common law world, is to do justice without fear or favour, affection or ill-will. Fear and favour are the enemies of independence, which is a state of being[7].

d) Affection and ill-will undermine impartiality, which is a state of mind. But independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them. That makes the law relating to recusal a serious business.

III. The reason for recusal

It is simple, a Judge has a duty of fairness when imparting justice and making judgments as they preside over a case. Thus, at the time a Judge learns of their assignment to a case, the Judge should review the facts of the case and decide whether there are any conflicts of interest regarding the case that would prevent them from being able to be impartial, ethical, and fair. Some examples of conflicts of interest where a Judge should likely recuse themselves from the case include: personal connection to one of the parties to the case, personal knowledge of the facts of the case, familial relationship to one of the attorneys and financial interest in the result of the case and other.

IV. Kind of recusal

Two kinds of recusal are possible. One is the automatic recusal, where a Judge himself withdraws from the case. The second is when one of the parties points to possible bias or personal interest of the Judge in the case and requests a recusal. In India, the prerogative of recusal is vested in the Judge. No Judge can be forced to withdraw from a case by another party.

V. Pecuniary bias interest

a) A pecuniary (bias) interest, however small it may be, disqualifies a person from acting as a Judge. Other types of bias, however, do not stand on the same footing and the courts have, from time to time, evolved different rules for deciding whether personal or official bias or bias as to subject-matter or judicial obstinacy would vitiate the ultimate action/order/decision. It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as an automatic disqualification. In such a case the law assumes bias. What interest short of that will suffice? It is, thus, evident that the English Courts have applied different tests for deciding whether non-pecuniary bias would vitiate judicial or quasi-judicial decision. Many Judges have laid down and applied the “real likelihood” formula, holding that the test for disqualification is whether the facts, as assessed by the court, give rise to a real likelihood of bias. Other Judges have employed a “reasonable suspicion” test, emphasising that justice must be seen to be done, and that no person should adjudicate in any way if it might reasonably be thought that he ought not to act because of some personal interest. The five members of the Bench speaking through Gleeson, C.J., referred to the test applied in Australia in determining whether a Judge was disqualified by reason of the appearance of bias i.e. whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question require to be decided and gave the following reasons for making a departure from the test applied in England. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the Tribunal has pre-judged the case, they cannot have confidence in the decision. The hypothetical reasonable observer of the Judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some Judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional Judge whose training, tradition and oath or affirmation require (the Judge) to discard the irrelevant, the immaterial and the prejudicial[8].

b) Principles governing such pecuniary bias interest:The principles which governs such biasness are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but it must not be seen to be inclined. A person having interest in the subject-matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject-matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the court has to consider whether a fair-minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the “real likelihood” test has been preferred over the “reasonable suspicion” test and the courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries.[9]

VI. Practice of recusal in India

a) In India there is no statute laying down the minimum procedure which Judges must follow in order to ensure the impartiality. However, courts have always insisted that Judges and other adjudicatory authorities must ensure that they have to ensure principles of impartiality.

b) The principles of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and rule of law prevailing in the community.[10]

c) In order to protect himself against the excesses of organised power man has always appealed to someone beyond his own creation. Such someone could only be God and his laws could only be divine law or natural law to which all temporal laws and actions must conform. This was the origin of the concept of natural justice. It implies fairness, reasonableness, equity and equality. Though the Indian Constitution does not use this expression, the concept divested of all its metaphysical and theological trappings pervades the whole scheme of the Constitution.[11]

d) Duty to act fairly and impartially is ingrained in Articles 14 and 21 of the Constitution. Indian courts have nourished these values with reference to administrative decision-making and emphasised on the test of “real likelihood of bias”. What is relevant according to Supreme Court is the reasonableness of the apprehension in that regard in the mind of the party. Hence the proper approach in case of bias for the court is not to look into his own mind and ask “am I biased?” but to look into the mind of the party before it. However, when it comes to applying these standards on Judges of the constitutional courts, law is not very clear. The cases of recusal have come in the recent past; however, there is no set principle as to when and how this principle should be followed. In India two methods are normally being practiced, first; automatic recusal and second; If no one objects, a Judge may proceed with the matter.

e) “Litigant cannot question a Judge on bias”: A litigant cannot seek recusal of the Judge during a hearing, the Supreme Court has said. “Judicial functions, sometimes, involve performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision. If the assertions of bias are to be accepted, it would become impossible for a Judge to seek clarifications and answers,” a Bench led by the Chief Justice of India, Ranjan Gogoi observed in a recent order. The order was based on a plea by activist Harsh Mander seeking the recusal of the CJI from his PIL highlighting the plight of inmates in Assam’s detention centres for illegal immigrants. Refusing to recuse, Chief Justice, Gogoi said, “a litigant should not be permitted and allowed to question a Judge on perceived bias especially after hearing has commenced and orders on different dates have been passed”. The decision to recuse is solely the Judge’s own. “Normally, this should be left to the Judge himself who is bound by the oath of office to administer justice to all persons alike without fear, favour and prejudice. The litigant, without any firm basis, cannot be permitted to raise such objection on the basis of the court hearing,”, Chief Justice, Gogoi observed in the order. If a Judge recuses on the word of the litigant, it may fall into a practice and would descend into forum-shopping, the Bench said.[12]

f) Further recusal is “removal of oneself as a Judge or policymaker in a particular matter, especially because of a conflict of interest.” Duty to act fairly and impartially is ingrained इन Articles 14 and 21 of the Constitution. Article 14 guarantees to all person equality before the law and equal protection of the laws. Article 21 confers on every person the fundamental right to life and personal liberty. It is the most fundamental of human rights. The basic principle of judicial conduct is in taking the oath of office, Judges, both of the Supreme Court and of the High Courts, promise to perform their duties, to deliver justice, “without fear or favor, affection or ill-will”.

VII. Conclusion

It cannot be said that wrongdoing by Judges will not be presumed. It does not also necessarily follow that one should turn his back on the considerable value of judicial self-regulation. There must surely be a practical and publically palatable balance between absolute autonomy for the Judges and annihilative accountability. Judiciary is not yet beyond self-redemption. Justice should not be left at the mercy of individual whosoever it may be. There is a need in India of a model code of conduct on the pattern of United States, which will ensure the impartiality of Judges and in turn will improve the confidence of people in the institution.

However, recusal is not an instance where the judiciary is under threat as the aggrieved party would like to know why a Judge has been recused. There are some Bills pending in Parliament regarding this, but nothing fruitful has been done so far. If the parliamentary process fails, this can be used as an opportunity by the judiciary for a self-reflection, as it has done before. Even if that fails, there could be measures like High Court Judges being appointed to a different State from where they practised as lawyers and English as the medium of communication would be of help. Expecting the High Court lawyers and Judges to understand and speak English is not an irrational expectation. The Judges who were earlier a part of the Bar would not be under pressure to ensure that they keep the senior lawyers happy. Bar Councils and other associations are vested with enough powers to ensure that Judges give the reasons for recusal as a matter of mandatory requirement. It is the duty of Bar to ensure their client knows why the Judge has been recused from their specific matter. There has to be a requirement of statutory obligation on the Judges to inform the litigants as to why there is a decision to recuse from hearing. Recusal should be used sparingly like the emergency provision in the Indian Constitution.

*****

†  Civil Judge (Senior Division).

[1] Alan Rose, ‘The Model Judiciary – Fitting in with Modern Government’, 4 the Jud. Rev. 323 at 326 (1999)

[2] Model Code of Judicial Conduct –Canon 3-E (1990)

[3] (2016) 5 SCC 808 .

[4] Saxmere Co. Ltd. v. Wool Board Disestablishment Co. Ltd, 2009 NZSC 72.

[5] Jeffrey W. Stempel, “Rehnquist, Recusal, and Reform”, 53 Brook L. Rev. 589 at 621-627 (1987).

[6] Black’s Law Dictionary, 1303 (8th edn., 2004).

[7] Grant Hammond, Judicial Recusal: Principles, Process and Problems, Bloomsbury Professional.

[8] P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC 380.

[9] S.C. Kainthla v. State of H.P, 2019 SCC OnLine HP 561.

[10] K.I. Shephard v. Union of India, (1987) 4 SCC 431,488.

[11] Ranjit Thakur v. Union of India, (1987) 4 SCC 611.

[12] The Hindu New Delhi, 13-5-2019

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges of the Allahabad High Court:

1. Shri Mohd. Aslam,

2. Shri Anil Kumar Gupta,

3. Shri Anil Kumar Ojha,

4. Smt. Sadhna Rani (Thakur),

5. Shri Om Prakash Tripathi,

6. Shri Naveen Srivastava,

7. Shri Umesh Chandra Sharma,

8. Shri Syed Aftab Husain Rizvi,

9. Shri Ajai Tyagi,

10. Shri Syed Waiz Mian, and

11. Shri Ajai Kumar Srivastava-I.

Supreme Court of India

[Collegium Statement dt. 04-02-2021]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges of the Calcutta High Court:

1. Kesang Doma Bhutia,

2. Rabindranath Samanta,

3. Sugato Majumdar,

4. Ananya Bandyopadhyay,

5. Rai Chattopadhyay,

6. Bivas Pattanayak,

7. Subhendu Samanta, and

8.  Ananda Kumar Mukherjee.

Supreme Court of India

[Statement dt. 04-02-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and Ravindra V. Ghuge, J., while addressing a Public Interest Litigation held that stepping into the other domains of State Organs would result into Judicial Over-Reach.

The instant PIL was instituted before this Court by a social activist seeking a direction upon the respondents to spread awareness of the contents of Constitution of India, The Right to Information Act and the Consumer Protection Act among the masses by including such laws as compulsory subjects of education at a higher level of studies.

Taking note of the above stated, Bench pointed out that in Justice K.K. Mathew’s ‘Democracy, Equality and Freedom’, the forward was penned by the former Chief Justice Y.Y. Chandrachud, wherein it was expressed that

“in our present dispensation, a Judge cannot, except for honourable exceptions, lay plausible claim of legal scholarship.”

Bench while considering the above expressed that

“We certainly are not exceptions and, therefore, would never dream of claiming legal or any other scholarship.”

“As Judge, we primarily don the hat of an adjudicator.”

Bench while expressing its’ opinion in the instant matter with regard to the administrative work, added that:

“Having regard to the manifold activities in relation to administrative work that we perforce are bound to discharge, we also don other hats.”

Judicial Over-reach

Further, the Court stated that the petitioner has made an attempt to make the Bench don the hat of an academician and interfere in academic matters, a field where they have little or no expertise.

The above action could be a judicial over-reach and stepping into the domain of the other organs of the State.

Hence, while disposing of the present petition,  Court opined that the matter must be left to the discretion of the experts in the educational field. [Sanjay Bhaskararo Kale v. Union of India,  2021 SCC OnLine Bom 89, decided on 20-01-2021]

Advocates for the parties:

Ms P.S. Talekar, Advocate on behalf of Talekar & Associates for petitioner;

Mr Bhushan Kulkarni, Standing Counsel for respondents 1 & 2; Mr A.R. Kale, A.G.P. for respondents 4 & 5

Know thy JudgeOp EdsOP. ED.

On 26th January, 1950, the Constitution of India came into force, also marking the establishment of the Supreme Court of India. The inaugural ceremony of the Supreme Court took place two days later when it succeeded the Federal Court of India and the Privy Council. For the first eight years, the Supreme Court functioned out of the Chamber of Princes in the Parliament House. It shifted to its current address in Tilak Marg in the year 1958.

The first six judges of the Supreme Court were also appointed on 26th January, 1950. A short brief on the important judgments given by the six judges follows next:

Born in a middle class family of Surat, Sir Harilal Jekisundas Kania was the first Chief Justice of India. He read law at the Government Law College, Bombay. He practiced as a barrister for some time and was later appointed as a judge in the Bombay High Court. Even though he was the senior-most judge, Justice Kania was passed over in favor of an Englishman and didn’t become the Chief Justice of Bombay High Court during the British rule in India in 1943. He later served as Acting Chief Justice of the Bombay High Court. When India became a republic he was appointed as the first Chief Justice of the Supreme Court. Some of the most important judgments of which he was a part include AK Gopalan v. State of Madras 1950 SCR 88, CIT v. Ahmedbhai Umarbhai & Co., 1950 SCR 335, Delhi Laws Act, 1912, In re v. Part ‘C’ States Laws Act 1951 SCR 74 etc.

Justice Patanjali Sastri studied law in Madras University and went on to  become an advocate of repute in Madras before he was elevated to the Bench. He served as the second chief justice of India from 7th November 1951 to 3rd January 1954.  Some of the most important judgments of which he was a part include Romesh Thaper v. State of Madras 1950 SCR 594, Shankari Prasad Singh Deo v. Union of India, 1952 SCR 89, CIT v. Ahmedbhai Umarbhai & Co., 1950 SCR 335, Delhi Laws Act, 1912, In re v. Part ‘C’ States Laws Act 1951 SCR 74, State of Madras v. V.G. Row, 1952 SCR 597 etc.

Justice Mehr Chand Mahajan was the third Chief Justice of India. Prior to becoming a judge he had served in the position of Prime Minister of Jammu and Kashmir and  played a role in the accession of the state to India. He studied law in Government College, Lahore and established a practice of repute there. He was also the president of the High Court Bar Association of Lahore.  Some of the important judgments of which he were a part include Bharat Bank Ltd Delhi v. Employees of the Bharat Bank Limited Delhi  1950 SCR 459, Brij Bhushan v. The State of Delhi 1950 SCR 605, Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd 1954 SCR 674 etc.

Justice Bijan Kumar Mukherjea became a judge of the Federal Court of India in 1947 and the 4th Chief Justice of India on 23rd December 1954. He studied law in the Surendranath Law College affiliated to the University of Calcutta.  Some of the important judgments of which he were a part include CIT v. Ahmedbhai Umarbhai & Co., 1950 SCR 335,  Keshavan Madhava Menon v. State of Bombay 1951 SCR 228, Delhi Laws Act, 1912, In re v. Part ‘C’ States Laws Act 1951 SCR 74 etc.

Justice Sudhi Ranjan Das read law at University College, London and was appointed as a judge at Calcutta High Court. He later served as Chief Justice at the Punjab High Court before being appointed to the Supreme Court. He went on to become the 5th Chief Justice of India and served in the position for 3 years. Some of the important judgments of which he were a part include A K Gopalan v. State of Madras 1950 SCR 88, State of Madras v. Champakam Dorairajan, 1951 SCR 525,,  Keshavan Madhava Menon v. State of Bombay 1951 SCR 228, CIT v. Ahmedbhai Umarbhai & Co., 1950 SCR 335, Delhi Laws Act, 1912, In re v. Part ‘C’ States Laws Act 1951 SCR 74, Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621, Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629, Kerala Education Bill, 1957, Re, 1959 SCR 995 etc

Sir Saiyad Fazi Ali was appointed as a judge of the Supreme Court on 26th January, 1950. Post his stint at the Supreme Court he served as governor of two Indian states and the chairman of the States Reorganisation Commission. Some of the important judgments of which he were a part include Bhawanipore Banking Corpn. Ltd. v. Gouri  Shanker Sharma 1950 SCR 25, CIT v. Ahmedbhai Umarbhai & Co., 1950 SCR 335,  Keshavan Madhava Menon v. State of Bombay 1951 SCR 228, Delhi Laws Act, 1912, In re v. Part ‘C’ States Laws Act 1951 SCR 74, Brij Bhushan v. The State of Delhi 1950 SCR 605, Romesh Thaper v. State of Madras 1950 SCR 594 etc.

 

Op EdsOP. ED.

The consent of the Attorney General to initiate criminal contempt proceedings against Kunal Kamra underlines a significant point – that the freedom of speech is subject to the law of contempt. Ubiquitous as it may seem, this fundamental norm appears to have been put into desuetude by the critics of the judiciary in recent times. This basic norm of Indian free speech jurisprudence may appear contrary to the American position where it was once believed that the law of contempt is limited by the first amendment.

Much has been said as to how the offence of scandalising the court is no longer relevant and should be done away with. Succour is sought from the unfair and not-so-lovely comments of the Privy Council in McLeod v.  St. Aubyn[1]:

…But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.

Coloured population we may be, but our Court in Perspective Publications[2]  has clearly held that it is not correct that committals for scandalising the court has become obsolete. Further, what the advocates of unqualified free speech undermine is what is pertinently said by our Court in Rama Dayal Markarha v. State of M.P.[3]:

“14… In this country justice at grass-root level is administered by courts set up in rural backward areas largely inhabitated by illiterate persons. It is they who bring their problems to the court for resolution and they are the litigants, or consumers of justice service. Their susceptibility is of a different type than the urban elite reading newspapers and exposed to wind of change or even wind of criticism. The people in rural backward areas unfortunately illiterate have different kinds of susceptibilities. A slight suspicion that the Judges pre-disposed or approaches the case with a closed mind or has no judicial disposition would immediately affect their susceptibilities and they would lose confidence in the administration of justice. There is no greater harm than infusing or instilling in the minds of such people a lack of confidence in the character and integrity of the Judge…”

True it may be that in that case the Court was concerned with a mofussil court, but it must not be lost sight of that the higher judiciary in our country, right up to the Supreme Court, is flooded with litigation emanating from rural areas. That includes a large number of criminal cases where the accused may be seeking bail or anticipatory bail. Proliferation of social media in rural India is well known. Unabated circulation of reckless comments is bound to create an impression in those susceptible minds, who unfortunately constitute the vast majority.

The Contempt of Courts Act has been enacted keeping in mind the developments and trends in other countries, without ignoring the ground realties and prevalent socio-economic conditions in India. (Arundhati Roy, In re[4]).

Critics of our courts have been vociferous as to how the power to punish for contempt is antithetical to the freedom of speech and expression and how the law of contempt has become anachronistic. Much has been said about how the law of contempt has been diluted even in a conservative country like the United Kingdom. Lord Templeman in the Daily Mirror case and the opinion of Lord Denning in the Blackburn case have been quoted ad nauseam.

It was generally believed that the approach of the American courts was that the contempt power of all courts is limited by the guarantee of the first amendment against interference with freedom of speech or of the press. This stems from the opinion of Justice Hugo Black in Bridges v.  California[5]. However, even in a country as liberal as the United States in terms of freedom of speech and expression, the necessity to have the power to punish for contempt and drawing lines distinguishing free-speech from interference with the course of justice has been recognised. In that very case of Bridges[6], Felix Frankfurter, J. penned his dissenting opinion which has gained currency in later times. He took the view that the summary power over contemptuous publications is deeply rooted in common law and that the power to punish for contempt is not a censorship in advance but a punishment for past conduct and, as such, like prosecution for criminal libel is not offensive either to first or to the fourteenth amendments. In Gentile v. State Bar of Nevada[7],  is an instance where  Rheinquist, C.J. took the view that “the substantial likelihood of material prejudice” standard is a constitutionally permissible balance between the first amendment right of attorneys in pending cases and the State’s interest in fair trials.

Vilification of Judges is also bound to affect the psyche of Judges. Felix Frankfurter, J. in Pennekamp[8], rightly observed:

” Judges, however stalwart, are human and the delicate task of administering justice ought not to be made unduly difficult by irresponsible print.”

In Attorney General v. BBC[9], Lord Dilhorne, disagreeing with the opinion of Lord Denning who wrote from the Court of Appeals, held:

It is sometimes asserted that no Judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting……

                                                                                      (emphasis supplied)

Borrie and Lowe in their commentary[10] on contempt of court state that Lord Denning’s view is “more a statement of policy rather than literal truth”. Cardozo, in his “Nature of the Judicial Process” referring to the “forces which enter into the conclusions of Judges” observed that “the great tides and currents which engulf the rest of men, do not turn aside in their course and pass the Judges by”.

The bottom line, therefore, is fair criticism – for that is what is permissible in our law. A judgement can be criticised respectfully, and instances closer home are aplenty. Seervai has severely criticised the judgement of  Bhagawati, J.  in E.P. Royappa[11]. He says the judgment suffers from the logical fallacy of undistrbuted middle, but the criticism is benign and is a pleasure to read. Constructive criticism, without attacking any particular Judge or court, has also been held to be out of the ken of contempt. A contempt petition was filed against Chief Justice E.S. Venkataramaiah for his interview lamenting the state of the judiciary as such. The Court declined to proceed with contempt.[12]

Consent for criminal contempt has been granted. The speaker claims to be a comedian. But it is the Attorney General who is standing up for a free and fearless judiciary by exercising his discretion wisely.

Kunal Kamra claims to be a comedian, but it is the Attorney General who is standing up for a robust judiciary. Freedom of speech does not licence vilification of Judges and the judiciary. Irresponsible onslaught on Judges is bound to affect their psyche. ‘There can be no claim of judicial superiority over human frailty’ said Lord Dilhorne, disagreeing with Lord Denning. Benign humour/satire a la Daphtary is welcome; not calculated vituperation clothed as humour. The power of contempt is warranted to ensure the free and fair administration of justice-free speech jurisprudence under our Constitution.

* Advocate-on-Record, Supreme Court. Author can be contacted at raghavendra@srivatsa.com

[1] McLeod  v. St. Aubyn, (1899) AC 549

[2] Perspective Publications (P) Ltd. v. State of Maharashtra, (1969) 2 SCR 779

[3] (1978) 2 SCC 630

[4] (2002) 3 SCC 343

[5] 314 US 252 (1941)

[6] Ibid.

[7] 501 US 1030 (1991)

[8] 328 US 331 (1946)

[9] 1981 AC 303 (HL)

[10] Borrie and Lowe, The Law of Contempt, (3rd Edn., 1996)

[11] E.P. Royappa v. State of T.N., (1974) 4 SCC 3

[12]Vishwanath v. E.S. Venkatramiah, 1990 SCC OnLine Bom 441

Appointments & TransfersNews

President transfers Justice Mohammad Rafiq, Chief Justice of the Orissa High Court, as Chief Justice of the Madhya Pradesh High Court and to direct him to assume charge of the office of the Chief Justice of the Madhya Pradesh High Court.

ORDER

Ministry of Law and Justice