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The decision of a judge to recuse is about due process, respecting people’s trust in judiciary

A judge should ideally recuse from a proceeding in which his impartiality might reasonably be questioned due to the possibility of personal bias or prejudice or if he has been a lawyer or judge in the matter at some stage.

Written by Faizan Mustafa |
Updated: October 21, 2019 9:50:42 am
In a fillip to state units, SC says: ‘Disqualification only for office-bearers’ There have been other recusal refusals. On May 2, CJI Gogoi refused to recuse himself in the Assam Detention Centre case.

Justice Arun Kumar Mishra is in the news, again. This time for his refusal to recuse himself from the Constitution Bench that has to re-examine a controversial judgment that he delivered last year. The repeated use of the word “impartial” by the parties seeking his recusal has naturally “hurt” Justice Mishra. Taking exception to the campaign on social media against him, Mishra asked: “Is maligning a judge on social media not akin to maligning the integrity of the court?”

“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 first to recuse,” the SC judge asserted. He added “the question is can we not sit in the constitution bench though it is us who referred the matter to the larger bench. It is not the appeal against the verdict in which I was the party. I may change or correct my view, if persuaded”. Justice Mishra has a valid point. However, the case in question is not a routine referring back of a SC verdict to the Chief Justice. It pertains to an exhaustive verdict which was challenged days after it was delivered.

In 2014, a three-judge bench led by the then CJI R M Lodha unanimously held, in the Pune Municipal Corporation case, that compensation under the Land Acquisition Act had to be deposited in the Court. It ruled that a mere deposit of money in the government treasury cannot be regarded as payment made to landowners and the acquisition would lapse. But on February 8, 2018, another three-judge bench of Justice Mishra, Justice Adarsh Kumar Goel and Justice Mohan M Shantanagoudar overruled this verdict in the Indore Development Authority case. Justice  Shantanagoudar differed with the majority verdict.

But the 2:1 verdict in the Indore Development Authority case did not satisfy the apex court’s criteria for setting aside a verdict. In the Dawoodi Bohra Community case in 2005, the court had said that a verdict can be overruled only by a bench of larger strength. On February 20, 2018, another case on land acquisition compensation came up before a SC bench. Justice Madan Lokur, who headed this bench, put a stay on all such cases till the anomalies in the Indore Development Authority case were referred to the CJI. The next day, Justice Mishra referred the matter to the CJI and asked him to constitute a larger bench. Since the CJI was aware of the circumstances of referral and Justice Mishra’s “predisposition” towards a particular interpretation, he should not have placed Mishra on this bench. Assuming that his inclusion is appropriate, why was Shantanagoudar not included in this larger bench?

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There have been other recusal refusals. On May 2, CJI Gogoi refused to recuse himself in the Assam Detention Centre case. He observed that, “Do not even remotely think that we will recuse. We will not allow anyone to browbeat the institution. Recusal will be destructive for the institution.” Like Mishra, he went on to add that “the inability, difficulty or handicap of a judge to hear a particular matter is to be perceived by the judge himself and no one else.” But the law on recusal is slightly different. It was laid down by Justice M N Venkatachaliah in Ranjit Thakur (1987), where he observed that, “The proper approach for the judge is not to look at his own mind and ask himself, however honestly, ‘am I biased’; but to look to the mind of party before him”.

A judge should ideally recuse from a proceeding in which his impartiality might reasonably be questioned due to the possibility of personal bias or prejudice or if he has been a lawyer or judge in the matter at some stage. We do trust our judges and that’s why no one sought the recusal of judges in the Babri Masjid case on the ground that judges who believe in the divinity of Lord Ram cannot decide a case in which Lord Ram himself is a party.

Justice Mishra is absolutely right that the decision of recusal should be made by the judge as per the dictates of his conscience. But ideally, when a judge recuses himself, as in the Gautam Navlakha case, he should state the reasons for his decision. A recusal should not become a convenient method to get rid of a judge. Bench hunting must not be permitted through recusal requests and such requests should not be used to intimidate a judge. In the R K Anand case (2009), the Supreme Court rightly that “a motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed as interference in the due course of justice leading to penal consequences”.


The country’s judicial system should consider changing the system of hearing recusal requests. Ideally, such a request should not be heard by the bench but only by the judge concerned. In the Jewell Ridge Coal Corporation case (1945), the US Supreme Court held that it is the responsibility of the judge in question to hear such a request. In 2014, Justice Antonin Scalia of the US Supreme Court heard the requests for his recusal in in a case to pertaining to the country’s Vice President Dick Cheney. In the Hanrahan case in 1980, Justice Rehnquist of the US Supreme Court observed: “Since generally the court as an institution leaves such motions (recusal), even though they be addressed to it, to the decision of the individual judges to whom they refer, I shall treat the motion as addressed to me individually.”

The Justice Mishra-led bench will now pronounce its verdict on the recusal on October 23. One hopes it will bear in mind that procedural fairness is an integral part of due process, especially after Maneka Gandhi (1978). Propriety, not legality, is in question here. Justice, after all, is rooted in the people’s confidence.

The writer is vice-chancellor, NALSAR University of Law, Hyderabad.

Views are personal

This article first appeared in the October 21 print edition under the title ‘It’s about benchmarks’

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First published on: 21-10-2019 at 02:22:28 am
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