The Recusal Conundrum: Urgent questions of Judicial Administration before the Supreme Court 

Prannv Dhawan and Anmol Jain

The institutional infirmities of the Indian Supreme Court have been widely criticized in recent times. One important aspect of this backsliding has been the violation of the fundamental principles of natural justice. Even as the Chief Justice violated the dictum of nemo judex in causa sua by sitting on a bench dealing with allegations of sexual harassment, questions have been raised regarding Justice Arun Mishra’s recent decision to continue hearing a case many have argued he ought to have recused from.

Background to the Current Recusal Conundrum 

The controversy arose last year on 8 February, 2018, when a 3-judge Bench by a 2:1 majority in Indore Development Authority v. Shailendra (Dead) set aside a 2014 decision in Pune Municipal Corporation v. Harakchand Misirmal Solanki , delivered by another 3-judge Bench. In Pune Municipal Corporation, the Court had held that land acquisition can void under section 24(2) of the Land Acquisition Act of 2013, if compensation has not been deposited in the bank accounts of the landowners or with the court. It was categorically clarified that money in the government treasury will not be treated as a payment to a landowner.

But by a 2:1 judgment in Indore Development Authority, the Court held that land acquisitions could not lapse due to a landowner’s refusal to accept compensation within five years. It held that if a person refuses to accept the compensation, it would amount to a discharge of obligation under section 31(1) of the Land Acquisition Act, 1894.

In addition, the majority judges – Justices Arun Mishra and AK Goel – held the previous 2014 Pune Municipal Corporation judgment to be ‘per incuriam’, while Justice Mohan Shantanagoudar dissented. The new judgment created chaos, as it implied the reopening of various High Court decisions that were settled under the principle evolved in Pune Municipal Corporation.

Following Indore Development Authority, when a similar land acquisition matter came up before a 3-judge Bench on 21 February, 2018 in Haryana v. GD Goenka Tourism Corporation, Justices Madan Lokur and Kurian Joseph raised concerns of judicial impropriety. They were part of the Pune Municipal Corporation Bench. Following the eruption of the controversy, the matter was referred to the Chief Justice of India for constitution of a larger bench for a resolution. 

Controversial constitution of the Bench

Recently, the Chief Justice constituted a new Constitution Bench headed by Justice Arun Mishra to decide the matter. Given that Justice Mishra had delivered one of the judgments under consideration before the Constitution Bench, it was argued that he must recuse from the Bench. It was emphasized that it may be tough to change Justice Mishra’s views as he had given elaborate reasons for declaring the 2014 decision in Pune Municipal Corporation case per incuriam, which indeed shows a strong position towards a particular interpretation.

Reference was made to the observations of Justices Jasti Chelameswar and Kurian Joseph in the NJAC judgment that reasonable doubt entertained by a litigant about the partiality of the judge is a ground for recusal. The respondent went on to quote the observations from a 1998 precedent of the Supreme Court in State of West Bengal v S Pathak, wherein the Court noted that:

“Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre-disposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartiality in a particular case.”

However, the Court refused to entertain the plea for recusal and delivered a long and reasoned decision for the same, which has been criticized elsewhere for its conceptional flaws. 

In this post, we attempt to highlight a couple of questions which the Supreme Court needs to urgently decide on an institutional level to strengthen its administrative functioning.

First, can a co-ordinate bench or a larger bench, but with a majority constituting lesser number of judges, overrule the previous decision of the Court?

With respect to the first part of the question, the position seems to have been already settled by the Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra, where it was held that a bench cannot overrule a precedent set by another bench of equivalent size, but must refer the matter to the Chief Justice for the constitution of a larger bench.

A constant adherence to such a rule not only ensures stability in the Court’s rulings, but also provides the Court with necessary flexibility to correct its errors in appropriate cases. Therefore, ideally speaking, had the 3-judge bench in Indore Development Authority referred the decision in Pune Municipal Corporation to the CJI for reconsideration by a larger bench, instead of holding the earlier decision as per incuriam, the present controversy might not have arisen.

The problem heightens when we see that in Indore Development Authority, two judges constituting the majority have effectively overruled a decision handed down by bench of 3 judges speaking unanimously. Not too long ago, a Bench of Justices Rohinton Nariman and SK Kaul had observed that the rule of a judgment decided by a majority of 4:3 judges overruling a 5-judge bench’s unanimous decision is problematic. Given that the total bench strength in Indore Development Authority remains same as in the previous decision in Pune Municipal Corporation, it is even more improper to argue that as a practice, the emphasis must be laid at the size of the bench and not the number of judge in the majority. 

This raises another connected issue, which pertains to the power of the Chief Justice to constitute benches. The power to decide the roster and the constitution of the benches rests totally with the Chief Justice. Regarding Constitution Benches, Order VI, Rule 2 of the Supreme Court Rules, 2013 provides that:

“(2) Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.”

Last year, learned Senior Advocate Shanti Bhushan had filed a writ petition in the Supreme Court praying to read the term ‘Chief Justice’ as the Collegium of Judges, similar to what was done in the Judges appointment cases. Denying the prayer, the Court ruled that such an interpretation is totally impracticable as it would result in chaos and would negatively affect the day-to-day administrative functioning of the Court. It was held that the CJI is the master of the roster and he alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted.

Without going into the merits of this decision, we wish to highlight the institutional difficulties that the Judiciary might face if such prerogative power is not used with the consideration of all relevant factors. Last year’s unprecedented press conference by the four senior-most judges is one such event that happened as a consequence. The present matter concerning Justice Mishra is perhaps the second one.

It is not a case of presumed bias – having a personal or pecuniary interest in the case or with the parties to the case, but one of an interpretational bias. It is the sole duty of the judge to analyse whether a reasonable person would believe that there is a possibility of bias, and if the answer is yes, then he must decide to recuse from the bench. Otherwise, justice might not be seen to be done. What one fails to appreciate here is a parallel concern that the Judge has to balance regarding his integrity towards the institution by deciding the cases while keeping all his biases aside.

In this case, Justice Arun Mishra has found himself in a delicate position, because deciding, either way, leads to multiple questions for the judge to answer. This seems to have contributed to his decision against recusal. Similar sentiments were also shared recently in an interview by the chief justice designate, Justice S.A. Bobde. In the concluding paragraph of the order, Justice Mishra notes that:

“Recusal is not be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing lengthy arguments for recusal should not be a compelling reason to recuse. The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of justice or discharge of duty as a Judge and judicial decision-making…

…However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench/es in the future…In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”

The only solution to these delicate situations is a better formation of benches on the part of the CJI. Considering that Justice Mishra was part of Indore Development Authority, the CJI ought to have chosen someone else from the 34 Judges to sit on the Constitution Bench. It would have satisfied the reasonable person test without putting a judge in a situation where he has to go through a recusal hearing. 

Before parting, we would like to note our appreciation for Justice Mishra, who took the effort to lay down the reasons for deciding against recusal from the case. Very recently, we witnessed multiple Supreme Court judges recusing from the matter involving Gautam Navlakha, sans any reasons. This further highlights the importance of the administrative duties of the CJI in constituting benches and allocating matters, because a recurrent appearance of such matters weakens the public confidence.   

Anmol Jain is a penultimate year student at National Law University, Jodhpur.

Prannv Dhawan is a third year law student at the National Law School of India University, Bangalore.

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