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)

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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)

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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)
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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)

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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]