Bias and Recusal of Judges: The Harsh Mander case

Bar & Bench May 7 2019
Adani

Dushyant Dave

On May 2, a Bench of the Supreme Court presided by Chief Justice of India Ranjan Gogoi substituted the name of Harsh Mander as petitioner in the Assam detention centres matter with that of the Supreme Court Legal Aid Committee. CJI Gogoi thundered,

Don’t even remotely think that we will recuse. We will not allow anyone to browbeat the Institution. Recusal will be destructive for the Institution”.

The Bench also comprising Justices Deepak Gupta and Sanjiv Khanna ordered,

 “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.”

It thus dismissed the application for recusal of CJI Gogoi from hearing the case relating to identification and deportation of illegal immigrants particularly in Assam.

My Lords, with great respects, you are not right in what you did. Therefore, let me address the correct position of law. In a 1987 judgment, Ranjit Thakur v. Union of India, Justice MN Venkatachalaiah affirmatively held,

“As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. 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 at the mind of the party before him.” 

In doing so, he relied upon two of the most relevant English authorities laying down the law on the subject.

“In Metropolitan Properties Co (FGC) Ltd. v. Lannon [(1969) 1 QB 577, 599] Lord Denning M.R. observed:

“. . . in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.”

Referring to the proper test, Ackner, L.J. in Regina v. Liverpool City Justices, ex parte Topping [(1983) 1 WLR 119 : (1983) 1 All ER 490, 494] said:

“Assuming, therefore, that the magistrates had applied the test advised by Mr Pearson: ‘Do I feel prejudiced?’ then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction, would follow.”

In a leading judgment, the United States Supreme Court in Public Utilities Commission of District of Columbia v. Pollak (343 US 451) held,

The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions...

...But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconsious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.

In PK Ghosh v. JG Rajput, Justice Verma, speaking for the Supreme Court went further:

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 basis which cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular Judge and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned Judge should recuse himself from the Bench hearing that matter.

This step is required to be taken by the learned Judge not because he is likely to be influenced in any manner in doing justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge — maybe subconsciously — has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite party.

Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done.

It must be remembered that Justice Gogoi hails from Assam. As a judge of High Court of Gauhati in 2005, he defined bias in Lena B Dam v. State of Assam and Ors. thus;

“The question that confronts the Court in the above facts is whether the participation of the respondent No. 6 in the selection proceeding vitiates the entire of the proceeding on the ground of bias. The doctrine of bias is a unique judicial innovation consistent with the principle that the justice delivery system must be rooted in the confidence of the people and justice must not only be done but also appear to have been done.

Proof of actual bias is difficult to come by. Hence the Court have consistently held that even the possibility of bias would suffice to nullify an order passed or an action taken. In the present case, the possibility of bias on the part of the respondent No. 6 as against the other candidates in the fray and leaning in favour of the respondent No. 7, loans large.”

The Restatement of Values of Judicial Life adopted by the Supreme Court on May 7, 1997 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.”

This is a clear pointer that if a judge has even a remote possibility of having a sub-conscious bias, he should recuse. 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. Judges often recuse themselves voluntarily to avoid controversies or to honour the age-old principle, Justice must not only be done but must appear to be done.

So why do judges follow this salutary principle in breach is a serious question.

Illegal immigrants have no right to stay in India. In Sarbananda Sonowal v. Union of India the Supreme Court rightly directed,

“Thus, the Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and they are liable to be deported.”

However, the lines are seriously blurred as to who is an illegal migrant and who is not. Right from the beginning of the 20th century, Muslims from Bangladesh have settled in Assam which was completely lawful. The Assam Accord of 1985 between AASU and AAGSP and the Central and State Government on the other categorically recognised:

“5.1 For purpose of detection and deletion of foreigners, 1-1-1966 shall be the base date and year.

5.2. All persons who came to Assam prior to 1-1-1966, including those amongst them whose names appeared on the electoral rolls used in 1967 elections, shall be regularised.

5.3. Foreigners who came to Assam after 1-1-1966 (inclusive) and up to 24-3-1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1939.

5.4. Names of foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Officers of the respective districts in accordance with the provisions of the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1939.

5.8. Foreigners who came to Assam on or after 25-3-1971 shall continue to be detected, deleted and expelled in accordance with the law. Immediate and practical steps shall be taken to expel such foreigners.”

Section 6A inserted in the Citizenship Act recognised this position unequivocally. The judgment of the Supreme Court delivered by Mr. Justice Rohinton Nariman (sitting with Mr. Justice Ranjan Gogoi) in 2015, although in the right direction, has led to serious issues of implementation. The Bench specifically referred 13 questions to be answered by a Constitution Bench of five judges including:

“viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

(xii) Whether Section 6-A violates the Rule of Law in that it gives way to political expediency and not to government according to law?

(xiii) Whether Section 6-A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?”

Yet, it exercised powers under Article 142 and issued a number of directions for border fencing, foreign tribunals, and deportation of declared illegal immigrants.

“While taking note of the existing mechanism/procedure for deportation keeping in view the requirements of international protocol, we direct the Union of India to enter into necessary discussions with the Government of Bangladesh to streamline the procedure of deportation. The result of the said exercise be laid before the Court on the next date fixed.”

The exercise for updating the National Register of Citizens (NRC) in Assam is not fully over. The exercise itself has thrown up serious issues about exclusion of those deserving and inclusion of those undeserving as per published reports. Be that as it may, lakhs find themselves excluded from the NRC and 99,000 declared by tribunals as foreigners are untraceable. It is in this background that the Chief Secretary of Assam filed the affidavit proposing to “conditionally release and monitor declared Foreigners languishing in detention centre for over 5 years”.

During the hearing on April 4, the Supreme Court came down heavily and virtually threatened the Chief Secretary with dire consequences. The Chief Justice observed as reported,

“You have no right to continue in office after authoring such an affidavit...

 This court will not be party to such an unheard of arrangement...

You have 900 detainees when lakhs of illegal foreigners have already intermingled with the local population....

...All you have is 900 people kept in sub-human conditions in your detention centres...

What other measures? That you will provide these detainees five-star facilities or you will beg and plead with their countries to take them back?”

These observations may have given rise to likelihood of bias in the mind of Mr. Harsh Mander, who had brought the petition against inhuman living conditions of the detenues in detention centres. He therefore sought the recusal of the Chief Justice. Can it be said that his apprehension was not bonafide?

Harsh Mander - CJI gogoi and harsh mander

The Court is entitled to get its directions enforced from the government, but at the same time, the Court must realise the difficulties faced by the government, both Central and State. Clearly, Bangladesh does not appear to have accepted India’s request to accept its citizens back. This creates a grave situation as to the human rights of lakhs of people.

The Supreme Court has in its 1955 judgment in Hans Muller of Nurenburg v. Superintendent, Presidency Jail held that the Government of India has absolute and unlimited power to expel foreigners and there is no provision fettering this discretion. However, the Supreme Court has also held that foreigners are also entitled to Right to Life and Liberty under Article 21.

The Universal Declaration of Human Rights, to which India is party, recognises the dignity of every human being. Although India is not a party to The Refugee Convention, 1951, the basic norms for human values and human dignity must be respected.

In such circumstances, the Court was not justified in dealing with the matter as it did, and certainly did not have the power to substitute Harsh Mander as the petitioner with any other person or entity, even in exercise of powers under Article 142.

What the Court did is unprecedented, and one hopes that the Court will correct it suo motu before it becomes a precedent, and a wrong one too. It may be worthwhile to mention here the caution administered by the Attorney General to the Chief Justice on November 12, 2018.

“…this is not the way... Your Lordships have to hear completely! Please see the other courts...”

To which the Chief Justice responded sportingly,

“… we take what you are saying in proper spirit...please argue...”

The Chief Justice should have dealt with Harsh Mander in the same way.

Lastly, it is important that the judges to the Supreme Court take oath under Article 124 (6) read with Schedule III to the Constitution of India, inter-alia to the effect,

“That I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”

The Oath must be observed by every judge in letter and spirit. They need not follow what the presiding judge is doing, if it is against the law.

Let us hope and trust that the Supreme Court will follow its own law and not merely declare it for others to follow.

The author is a Senior Advocate and the former President of Supreme Court Bar Association.

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect those of Bar & Bench.

 

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