Coming down heavily on activist Harsh Mander who sought the recusal of Chief Justice of India Ranjan Gogoi from a matter relating to the detention of alleged illegals in Assam, the Supreme Court Thursday removed him as a petitioner in the matter saying the “grounds” he had cited “have enormous potential to damage the institution”.
“Recusal is destruction of institution. Don’t even think of it… Learn to trust your judges. The day you don’t trust your judges, you’ve had it,” CJI Gogoi told Mander who had alleged that the CJI was “using” his petition on the plight of those lodged in the detention centres “to ensure that the state… commit to mass deportation of alleged foreigners”.
The bench, also comprising Justices Deepak Gupta and Sanjiv Khanna, dismissed Mander’s plea, named the Supreme Court Legal Services Authority as the petitioner in his place and appointed advocate Prashant Bhushan as amicus curiae on the issue of the detention centres.
“All that we would like to say is that the inability/handicap of a judge to hear a matter should be perceived by a judge himself and not a litigant,” the bench said, dismissing the plea for recusal.
Mander had referred to news reports about observations by the bench while hearing the matter on April 25. On that day, when it heard Mander’s PIL, the bench pulled up Assam Chief Secretary Alok Kumar for the submission in an affidavit that the Foreigners Tribunals in the state could allow declared foreigners who have been in detention for more than five years to be released after fulfilling certain conditions.
“How do you expect the Supreme Court to be party to an order allowing those who have no right to remain in India to be allowed to do so on fulfilling conditions? Your government has not succeeded in following the Constitution and you expect the Supreme Court to be party to it,” the bench had told the Chief Secretary, warning him of initiating departmental proceedings.
While hearing the matter, the bench had sought to know why only 900 people were in the detention centres while as per the Assam government’s admission, over 1 lakh people had been identified as foreigners. It had expressed its displeasure over the state’s inability to trace the rest after the state said they may have mixed with the local population.
On Thursday, the CJI told Mander that “what has been said in the course of a healthy debate has been interpreted by you to be an expression of opinion”.
The bench said such discussions were part of hearings in court and if he had no knowledge of it, he should allow trained lawyers to handle the matter. Although Bhushan was representing him in the matter, Mander told the bench that he had discharged the counsel and had appeared in person to argue his case.
“Your petition is still pending before this court… No final decision has been taken and you say CJI has prejudged the case? You are trying to serve the country. Is this how you serve the country?” the CJI asked Mander who replied that “I stand by my anxiety”.
“See what damage you have done to the institution,” the CJI said, “what if we tell you that the Chief Secretary has set you up and we will issue contempt notice to him? How will you answer?”
At this, Mander said: “Merely by saying it’s completely untrue.”.
The CJI told him: “You are doing good work on human rights… but how can you say if we ask questions, we have prejudged the issue?”.
To a query from the bench, Mander said that he had come across observations in the Hindustan Times newspaper and the Live Law web portal.
“So you take quotation from social media and throw it at the court and ask the CJI to recuse? Live Law? Is it a registered newspaper? What responsibility does it have?” the CJI said. Stating that institutions should be allowed to function, the CJI said: “What will happen if institutions crumble? Where will you be?”
Justice Khanna said that the petitioner must go by the final order and not by observations during hearings.
Joining issue, the CJI said even after the final order, there are occasions when the court hears review petitions even months later in open court, and added “we make mistakes. Of course, we do”.
Solicitor General Tushar Mehta, who was appearing for the Assam government, said the Chief Secretary did not have any knowledge of Mander’s application and that he was of the view that it must be opposed.