Returning the spotlight on recusal by judges, a fifth Supreme Court judge Thursday declined to hear rights activist Gautam Navlakha’s petition challenging the Bombay High Court’s rejection of his plea to quash the FIR against him in the Elgaar Parishad-Bhima Koregaon violence case in Pune.
When the matter came up Thursday before a bench of Justices Arun Mishra, Vineet Saran and S Ravindra Bhat, Justice Bhat recused. Appearing for Navlakha, senior advocate Abhishek Manu Singhvi said the three-week protection from arrest granted to him by the High Court would expire Friday. Taking note, the bench assured him that the matter will be heard Friday.
Navlakha’s petition had come up before a bench headed by Chief Justice of India Ranjan Gogoi on September 30. The CJI recused without ascribing any reason. It was listed the next day before the bench of Justices N V Ramana, R Subhash Reddy and B R Gavai. All three judges recused, following which it was listed for Thursday before the bench headed by Justice Mishra.
This has brought back the debate on recusal by judges. In 2015, Justice Kurian Joseph, one of the five judges on a Constitution Bench that struck down the National Judicial Appointments Commission Act as unconstitutional, wrote: “Being an institution whose hallmark is transparency, it is only proper that the Judge discharging high and noble duties, at least broadly indicate the reasons for recusing from the case so that the litigants or the well-meaning public may not entertain any misunderstanding that the recusal was for altogether irrelevant reasons… it is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a Judge is required to indicate reasons for his recusal from a particular case.”
Justice Madan B Lokur, who was also on the Bench that ruled on the NJAC Act, had this to say: “The issue of recusal from hearing a case is not as simple as it appears. The questions thrown up are quite significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other judges on the Bench.”
Judges recuse from a case in specific instances when there is an apparent conflict of interest that could prejudice the case or create bias — for instance, holding shares in a company that is a party to a case, or when a lawyer or a party involved in the case is personally known to the judge or when the judge has dealt with the case in a lower court.