#RecusalWatch: How recusals may affect the new Judges Roster

Bar & Bench February 13 2018

In this edition of Recusal Watch, we find that five Supreme Court judges recused from hearing six cases.

The new Judges Roster in the Supreme Court, effective from February 5, might work differently in practice, owing to recusal by judges.

Take, for example, The State of Maharashtra v. Sachin, a civil SLP, which is categorised as 0816 – Letter Petition & PIL matters: SLPs filed against judgments/orders passed by the High Courts in Writ petitions filed as PIL.

As per the Roster, this subject category would come under the Bench presided by Chief Justice of India Dipak Misra.

The matter, which was first listed before the Bench presided by the Chief Justice in accordance with the roster, eventually got listed before the Bench presided by Justice Ranjan Gogoi. It was first listed before the CJI-led three judges bench on January 29, when Justice AM Khanwilkar recused from hearing it.

On February 5, the same matter was listed before the Bench of Justices Ranjan Gogoi and R Banumathi.

In this case, the petitioners prayed before the Bombay High Court’s Aurangabad Bench that the order dated July 28, 2016, issued by the Law and Judiciary Department of the Maharashtra government, appointing 12 politicians as members of the Shri Saibaba Sansthan Trust (Shirdi), be quashed and set aside.

It was alleged that members of the Trust, which is a statutory body, were appointed on political considerations, because they belonged to the ruling party in in Ahmednagar district. Further, they had misused their power by releasing funds of the Trust for development of their constituencies.

The High Court had held that the State government did not consider the candidates’ suitability and concluded that all is not well with the appointments made by the State.

Therefore, the State government was directed to revisit and reconsider all such appointments, which do not meet the criteria laid down in the Shri Saibaba Sansthan Trust (Shirdi) Act, 2004. Specifically, it held that the term “otherwise found to be unfit”, as mentioned in the Act, is not restricted to just physical unfitness; it does not exclude moral unfitness.

On February 5, the Bench of Justices Ranjan Gogoi and R Banumathi, in an appeal filed by the Maharashtra government against the High court’s judgment, issued notice to the respondents. It also stayed the High Court order directing the State government to revisit these appointments. The Bench will hear the matter again on March 23.

Perhaps in this case, it was seen fit to list this matter before the Bench of Justice Gogoi, who has been assigned cases dealing with religious and charitable endowments as per the Roster.

On February 2, Justice L Nageswara Rao, sitting with Justice SA Bobde, recused from hearing Competition Commission of India v Bharti Airtel Ltd, a civil SLP against a Bombay High Court judgment dated September 21, 2017.

On April 21 last year, the CCI had directed inquiry against certain telecom companies on the basis of allegations that they delayed and denied adequate Point of Interconnections (POIs) during the test phase, thereby attempting and thwarting the Reliance Jio Infocomm Limited (RJIL)’s new project/entry in the telecom market.

The High Court had quashed the CCI’s order, holding that the role of the Cellular Operators Association of India (COAI) cannot be termed as “cartelisation”, and therefore, cannot be treated to mean the deliberate, collusive action, only to thwart or scuttle the new entry.  The matter will now be heard by another Bench on February 19.

Justice Rao also recused from hearing a criminal SLP, Kondaveeti Srinivasa Rao v. State of Andhra Pradesh. This will be heard by the Bench of Justices RK Agrawal and Abhay Manohar Sapre on February 9.

Among the other recusals, Justice Navin Sinha, sitting with Justice Rohinton Fali Nariman, recused from hearing M/s Vineet Singh Construction Co. Pvt. Ltd v. State of Chhattisgarh, an arbitration matter originating from the Chhattisgarh High Court.  This will be listed before another Bench on February 16.

Justice AM Sapre recused from hearing MP Housing Board Through Executive Engineer v. Shanti Devi, a civil SLP, on January 29, while Justice Agrawal recused from hearing SK Srivastava v. Shumana Sen, a civil SLP originating from the Delhi High Court, on January 31.

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