Case BriefsSupreme Court

Supreme Court: In a case where the petitioner sought recusal of Justice Dr. DY Chandrachud from hearing an application seeking recall of a previous order of which Justice Chandrachud a part of, the bench of Dr. DY Chandrachud and MR Shah*, JJ has not found any valid and good ground for recusal and has said that,

“Merely because the order might not be in favour of the applicant earlier, cannot be a ground for recusal. A litigant cannot be permitted to browbeat the Court by seeking a Bench of its choice.”

Background

The petitioner had instituted proceedings under Section 12 of the Protection of Women from Domestic Violence Act 2005 against a man with whom she had claimed to have entered into a relationship ‘in the nature of marriage’. She, however, was unable to prove this claim before the Karnataka High Court and hence, the High Court had, on July 31, 2018, noticed that,

“Domestic relationship means, the relationship between two persons who live or have at any point of time, lived together in a shared household. This concept has not been established by the petitioner.”

The petitioner, hence, instituted a case under Article 226 seeking that the decision of the Single Judge of the High Court dated July 31, 2018 “may be declared void/disabled/ recalled”.

It was her case that,

“In order to put forth a claim based on a relationship in the nature of marriage, it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage, a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief. She urged that in a situation such as the present, if the respondent who had a subsisting marriage entered into a relationship with her, there is no reason why a woman in the relationship should be left without a remedy.”

Order dated September 3, 2020

The Bench of Dr. DY Chandrachud and KM Joseph, JJ had declined to entertain the writ petition under Article 226 of the Constitution seeking a declaration of the invalidity of the order dated July 31, 2018 while expressly keeping open the rights and remedies available to the petitioner under Article 136 of the Constitution.

It had said,

“A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.”

Present order

The Court considered the following factors and dismissed the application at hand:

  • earlier one other application was filed by the petitioner to recall order dated 03.09.2020 which was dismissed.
  • order dated 03.09.2020 was pronounced after hearing the applicant.
  • earlier application for recalling of order dated 03.09.2020 was also dismissed after hearing the petitioner.

The Court also directed that the Registry shall not accept any further miscellaneous application on the subject matter of order dated 03.09.2020 or on the two orders dismissing the application for recall of the order dated 03.09.2020.

[Neelam Manmohan Attavar v. Manmohan Attavar, 2021 SCC OnLine SC 58, decided on 05.02.2021]


*Justice MR Shah has penned this judgment

Also read

Know Thy Judge| Justice Dr. DY Chandrachud

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

Case BriefsHigh Courts

Andhra Pradesh High Court:  Taking a stern stand against several instances of abuse of power by the Andhra Pradesh State Government, the Division Bench of Rakesh Kumar and D. Ramesh, JJ., reprimanded the Government for its high- handedness in dealing with matters concerning the rights of the people of Andhra Pradesh and making attempts at subduing the constitutional bodies such as the Legislative Council, State Election Commission and the Andhra Pradesh High Court itself. Rakesh Kumar, J., who authored the instant Order, minced no words while berating the State Government’s arbitrary actions- “The State by way of filing the interlocutory application, has ventured to malign the image of one of the Members of this Bench (Hon’ble Sri Justice Rakesh Kumar). It is very difficult for me to swallow the allegation of deviating from the principle of impartiality. With a view to uphold the majesty of law and repose the confidence of citizen in the judicial system, such endeavour made by the State is considered as malicious and cannot be approved. If such petitions are entertained, it will amount to allowing the party for hunting the Bench…. the Court cannot be frightened by any such action of the State”.

 Background and Trajectory of the Issue: The writ petition WP (PIL) 127/2020 was filed with a prayer to declare the action of the Government of Andhra Pradesh/ Municipal Administration and Urban Development Department in issuing Notice Inviting Offer to an outright sale of land/land assets available at Guntur and Visakhapatnam for Mission Build AP on “as is where is” basis through E-auction, as illegal and arbitrary. The writ was first taken up by the Division Bench comprising A.V. Sesha Sai and B. Krishna Mohan, JJ., and while granting time for filing a counter-affidavit, passed an interim order restraining finalization of the bidding process. In the meanwhile, other similar writ petitions were filed questioning the act of the State regarding selling/transferring of the Government land through auction. On 16-12-2020, Sudhakar Reddy, A.A.G., filed a petition for recusal of Rakesh Kumar, J., from the case on the ground that the Judge had made an observation while hearing the matter which implied that he will ‘declare a break down of constitutional machinery in the State and hand over the administration to the Central Government’.

Observations: While denying that the aforementioned observation was ever made by him, Rakesh Kumar, J., sternly noted that the instant application is a derogatory and contemptuous act by the State Government. The function of the High Court while exercising jurisdiction under Art. 226 of the Constitution, is to protect and enforce the fundamental right of a citizen if it is infringed or taken away by the State. This is the main protection lying in the hands of the citizen against the unauthorized or illegal act of a State. If the Court has doubts over any issue, then it is its right to ask certain questions. “Honesty, integrity, sincerity, fearlessness and impartiality all are essence of judicial system in general and Judges in particular. If any question is raised without any reasonable basis, the Judge has every right to refer to any undisputed fact even not on record of the said proceeding in his defence”.

Rakesh Kumar, J., went on to make some specific and scathing observations regarding the current attitude of maligning the Judiciary, and the Andhra Govt.’s malicious intent towards the constitutional bodies, especially the A.P. HC. Some of the notable observations are as follows-

  • The Court noted that how a Judge never has a media platform to showcase their impartiality and fearless. “We cannot even go to media for our defence.”
  • The Court also noted “A very disturbing trend has developed in our system. If one is influential, powerful, i.e., both in money and muscle, he feels that he is having every privilege to do anything as per his convenience and to the peril of system or poor citizen”.
  • Regarding the protection of a citizen’s fundamental rights, the Court observed that, “being a Judge of a High Court, it is our primary duty to come forward and examine the right of citizen in which cause of action even partly arose within the jurisdiction of such High Court, and endeavour to get such right enforced”.
  • Justice Kumar further noted the instance wherein the CM had proposed to abolish the Legislative Council itself when they did not agree to proceed with the tune of the Legislative Assembly’s decision regarding the establishment of three capitals in one State
  • Rakesh Kumar, J., also considered whether the letter to Chief Justice of India by the Andhra CM containing allegations against Chief Justices of Telangana and AP HC may have given undue advantage to the CM and people may deduce that the recent transfers of the Chief Justices may have resulted due to the letter. The Court emphasized on the need of transparency in the judicial transfers.
  • Following up on the abovementioned observation, Justice Kumar also noted a plethora of cases against the Chief Minister filed by the CBI and Enforcement Directorate. The Judge noted that the recent transfers are sure to give undue relief to the CM by way of causing delay in hearing of the matters.

With the aforementioned observations, Justice Kumar stated that,It appears that in the aforesaid background, now in the present proceeding, the State by way of filing the interlocutory application, has ventured to malign the image of one of the Members of this Bench”. Accordingly, the prayer for recusal was rejected as, “such prayer is totally untenable and malicious. If Court starts entertaining such petitions; in no case, the Court can be allowed to dispense justice”. In the concluding remarks, the Court stated that the above observations are specifically for considering the prayer for recusal made in this interlocutory application and not on the merits of the case.[Special Officer v. Thota Suresh Babu,2020 SCC OnLine AP 2143, decided on 30-12-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

Supreme Court:  Justice S Ravindra Bhat has recused himself from hearing the Centre’s plea seeking Rs 7,844 crore as additional fund from successor firms of US-based Union Carbide Corporation for giving compensation to the 1984 Bhopal gas tragedy victims. Expressing his unwillingness to be part of the bench to hear the matter, Justice Bhat said,

“I had appeared for the union of India in the matter when union had sought review”

A five-judge also comprising of Arun Mishra, Indira Banerjee, Vineet Saran and M R Shah, JJ adjourned the hearing till Wednesday and said Chief Justice of India S A Bobde would take a call on composition of the bench to hear the matter.

“We will not take it up today. We are waiting for CJI’s order,”

The Union Carbide Corporation (UCC), now owned by Dow Chemicals, gave a compensation of USD 470 million (Rs 715 crore at the time of settlement) after the toxic gas leak from the Union Carbide factory on the intervening night of December 2-3, 1984 killed over 3,000 people and affected 1.02 lakh more.

(Source: PTI)

Case BriefsSupreme Court

Supreme Court:

“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)

Hot Off The PressNews

Supreme Court: Justice Indu Malhotra has recused herself from hearing a batch of appeals and cross-appeals challenging a Bombay High Court verdict which held that mere possession of beef of animals slaughtered outside the State cannot invite criminal action.  A bench headed by Justice A M Sapre said that Justice Malhotra was recusing herself from the hearing as she had earlier appeared as a lawyer in the case.

The Supreme Court, on August 17, 2016, had sought the response of the Maharashtra government on the plea of ‘Akhil Bharat Krishi Goseva Sangh’ against the high court order. Later, as many as 33 petitions were filed in the Supreme Court by different individuals and organisations.

The High Court, on May 6, 2016, had said that the provisions of the Maharashtra Animal Preservation (Amendment) Act, which criminalised possession of beef, was an infringement on the right to privacy of citizens and unconstitutional. It had also upheld the ban on slaughter of bulls and bullocks in Maharashtra while striking down two sections of the state act which criminalised possession of beef.

Striking down sections 5(d) and 9(b) of the act which criminalised and imposed punishment for possession of beef of animals slaughtered in the state or outside, the high court had held that the state cannot control what a citizen does in his house, which is his own castle, provided he is not doing something contrary to the law.

“Sections 5(d) which provides that no person shall have in his possession flesh of cow, bull or bullock slaughtered outside Maharashtra is unconstitutional and infringes upon a citizen’s right to privacy,”

The court had also modified section 5(c) of the act, which makes possession of beef of animal slaughtered in the state an offence, and had said only “conscious possession” of such meat will be held as an offence.

In February 2015, the president had granted sanction to the Maharashtra Animal Preservation (Amendment) Act. While the act had banned slaughter of cows way back in 1976, the recent amendments prohibited slaughter of bulls and bullocks, possession and consumption of their meat. As per the act, slaughter attracts a five-year jail term and Rs 10,000 fine and possession of meat of bull or bullock attracts one-year jail and Rs 2,000 fine.

(Source: PTI)

Hot Off The PressNews

Supreme Court: Recently elevated Justice Sanjiv Khanna has recused himself from hearing the appeal of former Congress leader Sajjan Kumar challenging the Delhi High Court verdict that sentenced him to life term in a 1984 anti-Sikh riots case.

Ordering that the plea of Sajjan Kumar be listed before an appropriate bench to which Justice Khanna was not part, CJI Ranjan Gogoi, who was hearing the matter with Justice Khanna, said:

“My brother (Justice Sanjiv Khanna) does not want to hear.”

Justice Khanna had dismissed Sajjan Kumar’s bail in the Delhi High Court in 2015 in connection with the case.

The Supreme Court had earlier admitted the appeal of Sajjan Kumar for hearing and had also issued notice to the CBI on his bail plea and had sought its response within four weeks. It had also allowed the former Congress leader to file “lengthy list of dates” and “additional facts and grounds” in favour of his appeal.

Background of the case:

  • The anti-Sikh riots had broken out after the assassination of then prime minister Indira Gandhi on October 31, 1984 by her two Sikh bodyguards.
  • The case in which Sajjan Kumar was convicted and sentenced relates to the killing of five Sikhs in Delhi Cantonment’s Raj Nagar Part-I area of southwest Delhi on November 1-2, 1984 and burning down of a Gurudwara in Raj Nagar Part-II.
  • Trial court acquitted Sajjan Kumar in the case in a 2010 verdict.
  • The Delhi High Court had convicted and sentenced Sajjan Kumar to spend the remainder of his life in jail for the offences of criminal conspiracy and abetment in commission of crimes of murder, promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of communal harmony and defiling and destruction of a Gurdwara.
  • Sajjan Kumar surrendered before a trial court here on December 31, 2018 to serve the sentence in pursuance of the high court’s December 17 judgment awarding him life imprisonment for the “remainder of his natural life”.
(Source: PTI)
Hot Off The PressNews

Supreme Court: Justice L Nageswara Rao has recused himself from hearing the CBI’s plea alleging obstruction in its probe into the multi-crore Sarada chit fund scam probe by West Bengal authorities as he had appeared for the state as a lawyer.

The bench, which originally comprised of Chief Justice Ranjan Gogoi, Justice L Nageswara Rao and Justice Sanjiv Khanna, has now posted the matter for hearing on February 27 before an appropriate bench of which Justice Rao is not a part.

On February 18, West Bengal Chief secretary Malay Kumar De, DGP Virendera Kumar and Kolkata Police Commissioner Rajeev Kumar had filed separate affidavits in the apex court on the contempt petition moved by the CBI in connection with the scam and had tendered “unconditional and unambiguous apology”.

The Court had on February 5 directed them to file replies on the contempt pleas filed against them by the CBI.

A CBI team door-stepped Kolkata Police Chief, Rajeev Kumar on February 3, 2019 evening to question him on “missing evidence” in the Saradha and Rose Valley chit fund cases. Several members of Mamata Banerjee’s Trinamool Congress have been arrested in the cases, which were probed by a Special Investigation Team led by Rajeev Kumar. This lead to a sit-in by West Bengal Chief Minister Mamata Banerjee.

(Source: PTI)

Hot Off The PressNews

Supreme Court: After CJI Ranjan Gogoi recused himself from hearing a plea challenging the Centre’s decision to appoint M Nageswara Rao as interim CBI director on January 21, now Justice Dr. AK Sikri has recused himself from the matter.

Justice Sikri, who was part of the high powered panel which had removed CBI Director Alok Verma, told  senior advocate Dushyant Dave, appearing for petitioner NGO Common Cause:

“You understand my position. I can’t hear this matter.”

The matter will now be taken up tomorrow i.e. on 25.01.2019 by a new bench.

(With inputs from PTI)

Case BriefsHigh Courts

Bombay High Court: A Division Bench  comprising of S.C. Dharmadhikari and Prakash D. Naik JJ, denied a request for recusal during hearing of an income tax appeal along with a criminal writ petition for want of any substantial reason. The Court, while hearing the submission of the respondent for recusal took note of the growing trend among litigants to request recusal of judges.

The respondent submitted that one of the Hon’ble Judges inspires no faith towards his impartiality. The Bench after patiently hearing and recording statements made by the respondent, relied upon Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, wherein, then JS Khehar, J had upheld the Delhi High Court’s view that a party cannot insist on a judge recusing himself. Further, relying on Supreme Court Advocates-on-Record v. Union of India, (1993) 4 SCC 441, the court observed that a request for recusal must never be acceded to, unless justified. The Bench noted that when a Judge takes an oath of office, prescribed by the Constitution, implicit in that is there is no ill will, much less any enmity and when a judge is supposed to decide a case impartially, he has to be strict.

Upon careful analysis, the Court found that this was not the first time the respondent had made a request for recusal as he had filed a request for recusal to members of the ITAT in the earlier instance which dragged the proceedings endlessly. The Court condemned acts aimed at obstructing justice such as ‘Bench avoiding’ firmly. The Court also noted that the respondent did not put forward any statement which substantiates his claim that there is a reasonable apprehension of bias and prejudice. While denying the request, in order to accommodate the respondent, the Court listed the next hearing on 09.10.2017. [Commissioner of Income Tax – 24 v. Shri M.H Patel, Income Tax Appeal No. 584 of 2014, decided on 06.09.2017]