Updated on 18 October, 2019
- The Constitution Bench of the Supreme Court will decide whether Justice Arun Mishra should be on a bench to decide a matter on which he has given a judgment earlier.
- The case that Justice Mishra is hearing as part of a five-judge Constitution bench pertains to the land acquisition law.
- There have been demands for his recusal as Justice Mishra would be judging his own earlier judgment.
- But Justice Mishra has defended his right to rule in the matter and called such demands an attempt at “bench hunting”.
What is recusal?
- 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 in articles 14 and 21 of the constitution.
The basic principle of judicial conduct:
- 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
- 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”.
What is the issue?
- Section 24(2) of the land acquisition act states that in case of land acquisition proceedings, if a developer fails to take possession of the land acquired under the old laws for five years, or if compensation is not paid to the owner, the land acquisition act process would lapse. The process would then have to be re-initiated under LAAR, which would allow the owner to get better compensation.
- What constitutes payment of compensation is the point of contention.
- There were many cases where possession of the land was pending either because the compensation was not given or landowners had refused to sell their land. Many cases were filed in SC. One of them was the Pune Municipal Council case.
How the issue unfolded?
- The case was transferred to a Constitution Bench as two Benches of the court had delivered conflicting judgments on the issue.
Article 145(3) says at least five judges need to hear cases that involve "a substantial question of law as to the interpretation" of the Constitution, or any reference under Article 143, which deals with the power of the President of India to consult the Supreme Court.
- A three-judge Bench while interpreting Section 24(2), ruled by a 2-1 majority that if a landowner refuses the compensation offered by the developer, he cannot take advantage of his own wrongdoing, and have the acquisition proceedings lapse under the old law.
- In doing so, the court also invalidated a 2014 judgment by another three-judge Bench on the same issue, and declared it “per incuriam”, means no legal force or validity.
- The 2014 verdict by a Bench had said that acquisition proceedings initiated under the 1894 Act would automatically lapse, and would have to be initiated again if the state has not taken control of the land for five years, or if compensation was not paid to displaced farmers.
- While the 2014 ruling is considered to be in favour of the landowners, the 2018 ruling gave fresh hope for developers.
Why was a referral to a larger Bench made?
- A case decided by Benches of larger or equal strength is binding on other Benches, and since the Supreme Court sits in Benches of two or three, this practice ensures consistency and certainty in the law.
- A three-judge Bench cannot hold a decision by another three-judge Bench to be per incuriam; it can only ask for the matter to be considered by a larger Bench if it disagrees with the precedent. So this is the allegation on Justice Mishra that he did not follow judicial principles while giving the 2018 verdict.
Recusal of Judges in India
- For a long time, it has been a practice in the Supreme Court that in serious issues like inter-state water disputes, judges from the state concerned do not sit on the bench to decide them.
- The right to recuse is given to the discretion of the judges.
Previous cases of recusals
- Central Bureau of Investigation case: 3 Judges recused themselves from hearing the case challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation.
- Ayodhya case: Justice U.U. Lalit recused himself from hearing the dispute over land in Ayodhya after being pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest.
- Bhima Koregaon case: The recusal by several Supreme Court judges from hearing the appeal filed by rights activist Gautam Navlakha to quash the FIR against him.
- Chief Justice of India Ranjan Gogoi had first recused himself from hearing the case, possibly over paucity of time.
- Justice Bhat recused himself when the case came up before a bench led by Justice Arun Mishra. No reasons were cited for this. Justice Vineet Saran was the third judge on the bench.
- In order of seniority, the case traveled then to Justice NV Ramana. The entire bench headed by Justice Ramana recused itself from hearing the case.
What would happen should all the judges of the Supreme Court decide to recuse from a matter?
- Under Article 128 of the Constitution, the Chief Justice, with the consent of the President, can appoint a retired judge of the Supreme Court or a High Court to sit in and act as a judge.
- Unlike Article 127, which allows the Chief Justice to appoint a High Court judge as an ad hoc judge when there is no quorum in the Supreme Court, Article 128 does not talk about the necessity of quorum. Such an appointment is need-based.
Previous cases of judges refusing to recuse
- Sexual harassment case:
- When a woman employee of the Supreme Court accused Chief Justice of India (CJI) Ranjan Gogoi of sexual harassment, the CJI decided to hear the case himself.
- Assam detention center case:
- CJI Ranjan Gogoi also decided against recusing from hearing a PIL highlighting the “sub-human” living conditions of detenues in Assam’s detention centres.
- He told this plea had “enormous potential to damage the institution” and that the CJI’s recusal would mean the “destruction of the institution”.
- International Centre for Alternative Dispute Resolution (ICADR) case:
- In another petition dealing with the Centre’s takeover of the International Centre for Alternative Dispute Resolution (ICADR), CJI Gogoi refused to recuse when requested by ICADR counsel to recuse from the bench since he was ex-officio chairman of the ICADR.
- National Judicial Appointments Commission case:
- During hearings in the National Judicial Appointments Commission case, there was a plea asking Justice Jagdish Singh Khehar, to recuse from hearing the case since he was a member of the collegium.
- In a unanimous decision, SC rejected the plea.
- It said that a Judge may recuse on his own. But recusal at the asking of a litigating party, unless justified, must never be acceded to. For that would give the impression of the Judge had been scared out of the case.
- Medical college scam case: CJI Mishra was requested to recuse himself from hearing the medical college scam case, in which at least one former judge is an accused and in which the CJI’s own conduct was under the scanner. However, CJI Misra rejected the plea.
Supreme Court Guidelines on the Issue
- In Ranjit Thakur v. Union of India, Justice MN Venkatachalaiah affirmatively held, that ‘the proper approach for the Judge is not to look at his own mind but to look at the mind of the party before him.’
- In PK Ghosh v. JG Rajput, the Supreme Court said that: A basic postulate of the rule of law is that “justice should not only be done but it must also be seen to be done.
- If there be a reasonable basis for a litigant to expect that his matter should not be heard by a particular Judge and there is no absence of an alternative, it is appropriate that the learned Judge should recuse himself so that people do not doubt the process.
- The Restatement of Values of Judicial Life adopted by the Supreme Court categorically states, “A Judge shall not hear and decide a matter in a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.”
Issues with recusals Judges do not record their reasons in writing:
- For example, CJI Gogoi listed out reasons for why he wouldn’t recuse from the cases mentioned above. But he didn’t offer any reason why he was recusing from hearing Navlakha’s bail plea.
- If no justification of recusal is given. It becomes difficult to tell whether recusal was required or not.
- An unjustified recusal or a failure to recuse when faced with genuine doubts damages the rule of law. Withdrawing from a case merely on a party’s request allows parties to cherry-pick a bench of their choice.
- Counterpoint: Revealing the reasons in detail could lead to similar requests from parties in other cases, delaying the delivery of justice.
- There is also the possibility of the concept of recusal being misused by parties that may not like a particular judge handling their case.
Master of Roster issue
- ‘Roster’ as ‘a list of people’s names and the jobs they have to do at a particular time.’ Thus, ‘Master of Roster’ becomes ‘A man who decides such a list.’
- In the Indian legal context, the ‘Master of Roster’ refers to the administrative power of the Chief Justice of India and the Chief Justices of the High Courts to allocate the matters that other judges shall be hearing, respectively.
- Article 145 of the Indian Constitution provides power to the Supreme Court to frame its own rules to regulate the practice and procedure of the Court.
Will a transparent and orderly roster lead to less recusals by SC Judges?
- In a court of 34 judges, would it not have been better had the case been posted before a Bench in which Justice Mishra was not a member?
- Earlier, former Chief Justice of India Dipak Misra was criticized by four of his senior-most judges for allocating cases of national importance to select judges.
- In democratic countries around the world, notably in the UK, Canada, and Australia, the allocation of work and the selection of benches is a consultative process.
- It is not acceptable for the chief justice to have the unbridled power of choosing the judges for hearing without consultation.
- Counterpoint: The collegium is already controversial. It would create chaos if, for every case, a collegium starts deciding the benches.
What the SC said on this matter?
- A case was filed in SC requesting that a collegium of judges should be the master of roster instead of the Chief Justice alone.
- The petition said that the “master of roster" cannot be an unguided power, exercised arbitrarily by the CJI by hand-picking benches of select judges or by assigning cases to particular judges. It also cites the Judges case of 1998.
- The Judges case of 1998: The Supreme Court itself had interpreted the term 'Chief Justice of India' to collectively mean the CJI and his four senior-most judges. So effectively this order made collegium the ‘master of roster’.
But the Supreme Court rejected the petition.
- It said for the third time that CJI is the "master of the roster". The 'Chief Justice of India (CJI) is an individual judge and not the powerful collective of five senior-most judges of the Supreme Court called the 'Collegium'.
- And it is this exclusive authority of this individual judge, who is the "spokesperson of the court", to allocate cases to fellow judges as the 'Master of Roster'.
- The SC concurred that neither Article 145 (rules of court) nor the Supreme Court Rules say the 'Chief Justice of India' as the Collegium.
Way forward Formulating rules
- Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015) attempted to establish a rule.
- He said that “Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken. “But in other cases, such an inquiry is required, and the relevant test is the ‘real danger’ test.”
- What is real danger test?
- It is the test to be applied in cases of apparent bias on the part of a juror, arbitrator, magistrate or member of another inferior tribunal, was whether there was a real danger of injustice having occurred as a result of the alleged bias.
Judges should express their decisions in writing:
- As CJI, Justice Khehar said that the Supreme Court was finalizing guidelines that would make it compulsory for judges who recuse in cases to inform the registry in writing and also give reasons for doing so.
Addressing ‘master of roster’ issue:
- Urgent reforms in this regard are necessary. The selection of benches should be a consultative process.