Recusal Should Not Come So Easy But Question Is Of Perception Of Bias, Judge's 'Comfort' Level: Justice Bhambhani In Case Against Zee News

Delhi High Court judge Justice Anup Jairam Bhambhani on Tuesday said that recusal of a judge in a matter should not come easy but the judge's "comfort level" is also a consideration when it comes to deciding the question.

"Recusal should not come so easy but there are higher considerations than deciding than A versus B. No one should ever feel this matter went one way or the other because of ... It is not actual bias but the perception Of bias. Even deciding the application, I have to have the comfort level. I never get into a matter where I myself am not comfortable with my independence," said Justice Bhambhani. The judge clarified that 'comfort' may not be the best word.

The single judge was hearing Asif Iqbal Tanha's plea against leak of his alleged confession statement to media in the larger conspiracy of 2020 North East Delhi riots. Tanha had filed the petition against various news reports which claimed he had allegedly confessed to organizing and inciting the Delhi riots. Zee News is one of the respondents in the case.

The court will continue to hear the parties next month on the question of his possible recusal in the matter. 

The question of Justice Bhambhani's possible recusal in the matter has arisen because of the applications filed by News Broadcasters & Digital Association (NBDA) and News Broadcasters Federation (NBF), both of which apprehend that a decision in the case may lead to registration of FIR against journalists and also have an impact on the question of disclosure of sources.

Before his elevation as a judge of the High Court, Justice Bhambhani practiced in media law and has represented NBDA in the past.

None of the the parties have explicitly sought Justice Bhambhani's recusal. It has rather been submitted that they only want to assist the court.

"Both of you may or may not see any bias [but] I have to have the comfort level to decide the matter," said Justice Bhambhani. During the course of hearing, the judge also said, "Your perception of bias or his perception of bias is separate matter but I can certainly say my comfort level in hearing the matter. I am using the phrase advisedly."

Senior Advocate Siddharth Aggarwal, representing Tanha, argued that comfort will not be benchmark of not discharging the obligation by judge. He said the judge's comfort level is paramount but "that is not starting point".

"It has to reach a certain place before your lordships will say that the reason why I cannot discharge my obligation because of this particular issue and that issue must reach certain threshold," Aggarwal said.

Aggarwal told the court that the petition was filed in 2020. "This is a case where an anchor on national television sat with the 'disclosure statement' of an accused while the investigation was still going. No chargesheet was filed and no other person had access to the document, [anchor] sat there and read it out word for word. The predecessor bench has passed orders saying you disclose source. Those orders were not challenged. According to them, they [media organisation] complied with it. No intervention by any person, let alone this applicant, came to be filed," he added.

The court was told that a complaint was earlier filed with NBDA in 2021 and their response was that since the matter is sub judice, no action can be taken. "9th January, 2021, this applicant knew about the pendency of this matter, the pleadings, the orders in the matter but from 9th January, 2021, that applicant was not interested. His interest has arisen, not when there were six different judges in this courtroom," Aggarwal said.

"This is not an application for assisting the court. This is an application to make sure that there is one eventuality, that must come true. Please consider the timing. An honest litigant who today says 'I am renowned person and I want to come help'. Where were your from 9th January, 2021? Not wanting to help? You did not think the issue was grave enough, good enough to require your time?"

Aggarwal said the timing of the applications is significant. "Facts are facts. Your lordships must pay heed to facts... This is nothing but contempt," he said.

"If this application came on day one when I filed the petition, I would not have made the submissions. Please consider six presiding judges between the time I filed this and now. There was no application before anybody. That is precisely my point, the application is here because your lordships are here... that is may allegation, Please see what the Supreme Court and what this Hon'ble Court have said how that mischief must be ...."

The senior counsel also raised the question of intervention in a criminal matter and cited Ghanshyam Upadhyay v. Venugopal Nandlal Dhoot. Bombay High Court's decision in the same matter was also read before the court. 

Justice Bhambhani has previously also hinted at his recusal in the case. While it allowed Aggarwal to make arguments against recusal in the case, the court said it will have to take the final call on whether to recuse.

The plea pending before the court seeks direction against media houses for taking down sensitive information, allegedly leaked by police to them, in respect of the investigation. Previously, Delhi Police had informed the court that during enquiry, the Enquiry Officer could not establish the officers or office from where the investigation details were allegedly shared with media. It also said that the Enquiry Officer had examined various media personnel who refused to share details of their sources from where they had accessed investigation related documents.

Pertinently, Justice Bhambhani was also part of the division bench that had granted bail to Tanha in the criminal case. The counsel representing the parties on January 11 submitted the "present petition does not in any manner relate to the merits of any allegations against the petitioner, whether prima-facie or otherwise, which may have been alluded to in the aforesaid judgment; and accordingly, there is no impediment to the under-signed hearing the present petition."