#RecusalWatch: Of Changing Benches and Shifting stances

Bar & Bench February 3 2018

Sometimes, the end result of a recusal is achieved by means other than recusal. For instance, the Chief Justice of India, as the master of the roster, can achieve the same result by simply transferring a part-heard matter from one bench to another, without any explanation.

That this has been happening very often in the Supreme Court was the thrust of the press conference held by the four senior most judges of the Supreme Court on January 12.

Another instance of this phenomenon came to light on Tuesday, under the very shadow of this presser, and was missed by the entire media.

And the revelation of the new Supreme Court Roster on Thursday has not really altered this situation. The category, “ordinary civil matters”, for example, has been listed under all the senior judges, except Justice Ranjan Gogoi. It is not clear why Justice Gogoi has been excluded from this category. This is a very broad category of cases which includes as many as 19 sub-categories.

Now, let us explain what happened on Tuesday.

The matter regarding whether the Governor’s office is covered under the RTI Act was previously heard by the Bench of Justices Kurian Joseph and Amitava Roy on December 5. That Bench directed the matter to be listed for final hearing on January 23.

Instead, on Tuesday, it was listed before the Bench of Justices Arun Mishra and Amitava Roy which disposed it of as infructuous. This case did not even decide the question of law, which is now open. The Bench had also held that the High Court’s order in the case is not to be enforced and not to be treated as a precedent for any other case. More on this later.

This case is shown as sub-category 1807 [Ordinary Civil Matters - Others]. This is again a very broad sub-category, which could attract any case that does not strictly get classified under other specific sub-categories.

As this category is shown in the Roster under all the judges, except Justice Ranjan Gogoi, the CJI, as master of the Roster, has the discretion to remove a part-heard matter from one judge and allot it to another.

Background

The case, Public Information Officer v Manohar Parrikar & Others etc., is a civil SLP filed in 2011 by the PIO of the Goa Raj Bhavan, against the decision of the Panjim bench of the Bombay High Court, which held that the Governor is a public authority under the RTI Act, and therefore, not exempt from its ambit.

Current Chief Minister Manohar Parrikar, who was then the opposition leader in the Goa Assembly, had filed the RTI application for disclosure of the Governor’s reports sent to the President under Article 356 of the Constitution. He had secured a favourable decision from the Goa State Information Commission, against which the PIO had filed an appeal before the Bombay High Court’s Panjim bench.

The Goa Raj Bhavan took the position before the High Court that the Governor’s position was akin to that of the King/Queen of the UK – a sovereign authority, answerable to none. The High Court had rejected this contention, holding that the Governor is not sovereign, and sovereignty does not vest in her.

The High Court also held that the relationship between the President of India and the Governor of a State is not fiduciary. Consequently, the information sought by Parrikar, that is, a copy of the report made by the Governor to the President (through the Home Minister) under Article 356(1) of the Constitution, was declared not exempt from disclosure under the RTI Act.

This led to the appeal in Supreme Court by Goa Raj Bhavan.

The Result

That Justice Amitava Roy was on both the benches that heard the case earlier, perhaps justifies the shifting of the matter. Also, the Justice Arun Mishra-Amitava Roy Bench had heard a related case, to which this matter was tagged, on July 6 last year, when it directed the further listing of the petitions in the 3rd week of August 2017, on a hearing day.

This did not happen till December 5 last year, when it was listed before the Justice Kurian Joseph-led Bench. On that day, the matter got adjourned because the counsel for one of the respondents circulated a latter pleading personal difficulty.

Indeed, the shifting of the case on both the days from one bench to another - on December 5 and on Tuesday - to the previous bench which had heard the matter, makes no sense, in the absence of any explanation.

On December 5, Justice Kurian Joseph was keen to hear the case on merits, including the question of law, now kept open by Justices Arun Mishra-Amitava Roy Bench. The case did not appear to be infructuous to the Justice Kurian Joseph-led Bench on December 5, and to Justice Arun Mishra himself, when he heard the case earlier on July 6.

Most newspapers that covered the hearing of this case on July 6 last year had reported that Justice Arun Mishra had expressed strong views in favour of RTI Act’s applicability to the Governor’s office, even as he defended its application to the office of the CJI and the Supreme  Court.

Hence, it did come as a surprise when the same judge chose to dispose of the matter as infructuous on Tuesday this week. 

As a result of the order, the Governor's office can continue to deny information under the RTI Act, citing Justice Arun Mishra-led bench’s decision on Tuesday. Thus, although the stay on the High Court’s judgment imposed by the Supreme Court on December 8, 2011 got vacated as a result of the disposal of the case, the decision to keep the question of law open means continuance of the stay, for all practical purposes.

Interestingly, apart from the PIO of Goa Raj Bhavan, the Special Secretary to the Governor of Goa, and the Centre had filed separate petitions challenging the High Court’s judgment. All the three petitions have now been rendered infructuous.

Tagged along with this case are two other pending SLPs filed against the Delhi High Court’s judgments. In one, the High Court had made it mandatory for Supreme Court judges to disclose their assets and liabilities under the RTI Act.  Although some Supreme Court judges now declare their assets on the SC website, the appeal filed by the Secretary General, Supreme Court against the High Court’s judgment is still pending.

In the other case, activist Subhash Chandra Agrawal has appealed against the High Court’s judgment holding that the office of the Attorney General of India is not a public authority.

Ideally, the Goa case should have, along with these two, been referred to a Constitution Bench instead of being disposed of. Parrikar’s lack of interest in getting the information he sought could have rendered the SLP filed by the PIO infructuous, but the question of law raised by it has implications for other cases elsewhere.

Other Recusals last week

Justice Sanjay Kishan Kaul recused from hearing M/s Spicejet Ltd v. Union of India & Others. This civil SLP is against the order of the Division Bench of the Delhi High Court, which held that SpiceJet was bound to pay Inland Air Travel Tax (IATT) along with interest at 20 per cent for the period from March 1996 to August 1996.

Justice Ashok Bhushan recused from hearing Common Cause v. High Court of Allahabad, a civil writ petition filed in 2012, challenging the validity of Allahabad High Court (Right to Information) Rules, 2006, which the petitioner claims are in clear violation of the different provisions of the Right to Information Act, 2005.

As Justice Bhushan served at the Allahabad High Court as permanent judge from 2001 to 2014, he has understandably recused from this case though the case was listed before Justices AK Sikri and Bhushan once before.

Justice Kurian Joseph recused from hearing a civil writ petition, All India Bharat Sanchar Nigam Ltd Retired Executives Association v. Union of India.  Dealing with service matters/retiral benefits, this case will now be listed before another bench in which Justice Kurian Joseph is not a member, on February 2.

Justice RK Agrawal recused from hearing Intercontinental Association of Lawyers Through Its International Chairman, Debasis Misra v. Union of India.  He also recused from hearing Seema Sapra’s fresh writ petition. Justice AM Sapre too recused from hearing this petition.

The other recusals from last week are:

Justice DY Chandrachud: BCCI v. Kochi Cricket Private Limited, a civil SLP.

Justice Navin Sinha: Competition Commission of India v. Bharti Airtel Ltd., a civil SLP.

Justice Uday Umesh LalitShyam Lal v. State of Uttar Pradesh, a criminal SLP.

Justice L Nageswara Rao: Mahanth Satyanand @ Ramjee Singh v. Shyam Lal Chauhan and Ors, a civil appeal.

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