Recusal Watch: Was the plea for recusal of two SC Judges from hearing Judge Loya case justified?

Bar & Bench March 20 2018

In this edition of Recusal Watch, we look at the recusals (and the refusals to recuse) by Supreme Court judges between March 5 and 16.

The plea for recusal by two of the three judges on the Bench, which completed the hearing of petitions seeking a probe into Judge Loya’s death, is something that requires more than a passing mention. The plea raised on March 9 by Prashant Bhushan, who was counsel for the intervener, Centre for Public Interest Litigation, stunned the judges and those in the court room, especially because it was raised at the fag end of the hearing.

Bhushan suggested that as both Justice AM Khanwilkar and Justice DY Chandrachud had served as Bombay High Court Judges and might know the High Court Judges who had given statements on Judge Loya’s death, they might consider whether it would be proper for them to sit on this Bench.

Mukul Rohatgi, counsel for State of Maharashtra, responded by saying that the suggestion was contemptuous. He wondered if the Chief Justice of India, who travels across the country and has had contacts with judges in every High Court, also has to recuse from hearing this case.

Justice Khanwilkar asked whether the entire High Court would be disqualified from hearing this matter, and if so, how come one of the petitions (filed by the Bombay Lawyers Association) was initially filed in Bombay High Court before it was transferred to Supreme Court. Bhushan replied saying that he had not filed the petition in the High Court, and that he could, therefore, raise the issue.

The BLA is represented by Senior Counsel Dushyant Dave, who was absent during the hearings on both March 9 and 16, when this issue was raised. On March 16, Rohatgi referred to it in passing, to buttress his argument that the petitions are not bona fide. As the judgment has now been reserved, we can expect the Bench to provide reasons on why it disagrees with the plea.

The two Bombay High Court judges in question – Justice Bhushan Gavai and Justice Sunil Balkrishna Shukre – had told the Indian Express that they were at Meditrina Hospital in Nagpur, where Loya was brought dead on December 1, 2014.

Justice Gavai was appointed Additional Judge of the Bombay High Court on November 14, 2003, whereas Justice Shukre was appointed judge of the Bombay High Court on May 13, 2013. The latter judge had been the part of the judiciary in Maharashtra since 2000, serving as the Principal District Judge, Kolhapur, Registrar (Administration) of the Nagpur bench of the Bombay High Court, and Registrar General of the Bombay High Court before his elevation as the Judge.

Justice Khanwilkar was appointed Additional Judge of the Bombay High Court on March 29, 2000 and confirmed as permanent Judge on April 8, 2002. He continued as a judge of the Bombay High Court till his elevation as the Chief Justice of the Himachal Pradesh High Court on April 4, 2013.

Justice Chandrachud was a judge of the Bombay High Court from March 29, 2000 to October 31, 2013, when he was appointed as the Chief Justice of the Allahabad High Court.

These dates would suggest acquaintance with the judges in question. But what would perhaps matter is the degree of familiarity with the judges in question, on which Khanwilkar and Chandrachud JJ alone could decide whether they ought to have recused or not.

Other recusals

Justice Khanwilkar recused from two cases during this period. On March 6, he recused from Surendra Ramchandra Mestri v. State of Maharashtra. A bail application, it was later listed before the Bench of Justice SA Bobde and Justice L Nageswara Rao on March 7, when the Bench granted bail to the applicant.

On March 9, Justice Khanwilkar recused from Anil Agarwal Foundation etc. v. State of Orissa, which is an appeal filed against a verdict of the Orissa High Court. In this case, Vedanta wanted to set up a university on the Puri-Konark marine drive. Landowners challenged the acquisition before the High Court, which held in 2010 that acquiring vast tracts of lands in which two rivers are flowing and handing over the same to the beneficiary company, is contrary to the doctrine of public trust, besides being violative of Air and Water (Prevention and Control of Pollution) Act, and Environmental Protection Act, 1986.

In the Supreme Court, Senior Counsel Mukul Rohatgi is appearing for the appellant, Anil Agarwal Foundation (Vedanta).  As the CJI continues to be the only judge hearing PIL matters under the roster, one has to wait for a different Bench, presided by the CJI, to hear this matter.

Justice Chandrachud recused from Mohd. Ahmad Siddiqui v. High Court of Judicature of Allahabad, a civil SLP, on March 16.

Justice L Nageswara Rao (sitting with Justice SA Bobde) recused from M/s Rajayalakshmi Modern Rice Mill Rep. by its partner Vallabhaneni Venkataramayya Vijaywada v. Nalluru Nagendra Babu, on March 6. A civil SLP, the matter was later listed before the Bench of Justice AK Sikri and Justice Ashok Bhushan, which disposed of it on March 16.

Justice Rao also recused from Veerender Pershad Rep. by their GPA holder M.Dwaraka Prasad & Ors v. The State of Telangana (Previously State of Andhra Pradesh) represented by the Prl. Secretary to Medical Aid and Ors. on March 12.

Three recusals by Justice Lalit on the same day

Justice Uday Umesh Lalit (sitting with Justice Adarsh Kumar Goel and Justice Rohinton Fali Nariman) recused from three cases on March 7. The first was Mohd. Idris v. the State of Andhra Pradesh, a criminal appeal. The second was Union of India v. Sistema Shyam Teleservices Ltd (Delhi Circle), an appeal against the decision of Telecom Disputes Settlement and Appellate Tribunal. The third was Vijay Madanlal Choudhary & Ors v. Union of India, a criminal SLP, against a Bombay High Court verdict in 2014.

On March 12, Justice Lalit (sitting with Justice Jasti Chelameswar) recused  from Gharda Chemicals Ltd v. Darious Rutton Kavasmaneck & Ors. On March 13, while sitting with Justice Arun Mishra, he recused from M/s Chitralekha Builders v. G.I.C. Employees Sonal Vihar Cooperative Housing Society Ltd & Ors, a civil appeal. On March 16, he recused from Enercon GMBH v. Wind World (India) Limited, an arbitration matter.

Justice Rohinton Fali Nariman recused from Reji Kurian v. Fr.Geevarghese Kappil & Ors on March 13. It was later listed before the bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit on March 16.

Justice Nariman also recused on March 15 (while sitting on a three judge Bench along with Justices Adarsh Kumar Goel and Navin Sinha), from Christian Medical College, Vellore v. Union of India, a transfer case relating to medical admissions, pending since 2012. The matter will now go before another three-judge Bench.

Justice Navin Sinha recused from State of Bihar v. Jagal Lal, a civil SLP, while sitting with Justice Arun Mishra, on March 12.

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