#RecusalWatch: Will a transparent and orderly roster lead to less recusals by SC Judges?

Bar & Bench January 22 2018

The absence of a transparent and orderly roster of Supreme Court judges has led to a host of issues before the Court, including the latest crisis triggered by the four senior judges’ presser on January 12.

The four judges’ demand for transparency in the roster stems from their concern that the Chief Justice of India, as the master of the roster, should not arbitrarily allocate cases to preferred benches.

CJI Dipak Misra apparently conceded the merits of their demand when on January 19, he directed the listing of the petitions filed by Tehseen Poonawalla, and Bandhuraj Lone, seeking an independent probe into Judge Loya’s mysterious death, “before an appropriate bench, according to the roster”.

That the matter finally got listed before the Bench headed by him on January 22 shows that had he initially followed the roster, the matter would not have been listed before Justice Arun Mishra-led Bench on January 12, which precipitated the four judges’ public protest.

Justice Arun Mishra’s cryptic order on January 16, that the matter be “put up before the appropriate bench”, was an uncharacteristic manner of recusal.

It was uncharacteristic, because Justice Mishra impliedly conceded that the Bench headed by him might not have been the appropriate bench (that is, according to the roster) to hear this matter, without actually indicating that both he and Justice Mohan M Shantanagoudar were not inclined to hear it further.

And he added those words, “put up before the appropriate bench” after directing that the documents be placed on record within seven days, and if it was considered appropriate, copies be furnished to the petitioners. The question as to why he passed this interim direction, if he felt that his Bench might not be the appropriate one, remains unanswered.

After all, the critics of the hearing of this case by the Supreme Court have questioned not just the listing of the case before Justice Arun Mishra-led Bench, but the haste shown in hearing it.

More instances

Indeed, there are more instances of the CJI directing the Registry to list cases before the appropriate bench as per the roster.  Last week alone, the CJI-led Bench directed listing of several matters before appropriate benches, according to the roster, upon mentioning by the advocates.

The plea for a probe into Judge Loya’s death was mentioned before the CJI on January 19, after Justice Arun Mishra “recused” from hearing it further. Indeed, this is the general practice.

Therefore, one wonders whether it requires mentioning before the CJI by an advocate, to prevent a matter from being listed before a bench which is not the “appropriate bench as per the roster”.

The hearing of M/s Strategic Energy Technology  Systems Pvt Ltd v Union of India on January 16 by the Bench of justices Ranjan Gogoi and R Banumathi is an example. Additional Solicitor General  Pinky Anand submitted to the Bench that the matter should be dealt by the Coal Bench of three judges and that Court No.3 was not the appropriate Bench to deal with the case. Justices Gogoi and Banumathi, therefore, asked her submit her stand in the form of an application within a week, and agreed to list it thereafter.

Something similar to what the Justice Arun Mishra-led Bench did to the petitions filed by Poonawalla and Lone, the Bench of Justices SA Bobde and L Nageswara Rao, on January 19, issued notice in the matter of Swami Vivekanand Subharti  University Registrar v State of Uttar Pradesh, both on the SLP, and on the prayer for interim relief, and then directed its listing after four weeks before the appropriate bench, hinting that it is not inclined to hear it further.

Other recusals

Of the remaining recusals, seven judges recused from 10 cases. Of these, Justices AM Khanwilkar, Rohinton Fali Nariman, and Abhay Manohar Sapre recused from two cases each.  Justices J Chelameswar, Kurian Joseph, Ashok Bhushan and Mohan M Shantanagoudar recused from one each.

Justice AM Khanwilkar recused from hearing Mohd. Zuber v The State of Madhya Pradesh, concerning the challenge to the Indore Master Plan, 2021. It will be heard by another bench on January 25. He also recused from Dr Kamini Lau v High Court of Delhi.

Justice Rohinton Fali Nariman recused from hearing Indian Hotel and Restaurant Association (AHAR) v State of Maharashtra [the dance bar case, in which the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of women (working therein) Act 2016 and the rules are under challenge].  It will go before another bench on January 25. He also recused from United Commercial Bank v Everest Fincap Pvt Ltd.

Justice Abhay Manohar Sapre recused from hearing Krishnaveer Dhakad v State of Madhya Pradesh, a bail matter. He also recused from Thomas Chandy v State of Kerala. Another bench will hear both the cases on January 25.

Justice Kurian Joseph had earlier recused from hearing the Thomas Chandy case on January 19.

Justice J Chelameswar recused from hearing Municipal Corporation of Greater Mumbai v Kohinoor CTNL Infrastructure Co Pvt Ltd, a Miscellaneous Application seeking modification of a 2014 judgment, by a bench of which he was a member.

Mohan M Shantanagoudar recused from hearing Abraham TJ v M/s Nandi Infrastructure Corridor Enterprises Ltd. A criminal SLP originating from the Karnataka High Court, it will go before another bench on March 5.

Lastly, Justice Ashok Bhushan recused from hearing Sunder Lal v State of Uttar Pradesh. A service matter involving pay scales, it will now be heard by the Bench of Justices Madan B Lokur and Deepak Gupta on January 22.