Posterity Will Not Forgive Me If I Recuse; Justice Arun Mishra Says Non Recusal Is In Interest Of Judiciary [Read Order]

The order of the Supreme Court rejecting the prayer for recusal of Justice Arun Mishra from heading the Constitution Bench formed to settle the interpretation of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Act, is out.

In his order, Justice Mishra  explains why he has chosen not to recuse. The judge said that the non recusal is in interest of justice and he would be committing a blunder if he recuses from the case. The judge also added that recusal cannot not to be forced by any litigant to choose a Bench and it  is for the concerned Judge to decide to recuse.

The judge said:

Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the 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. There is no room for prejudice or bias. Justice has to be pure, untainted, uninfluenced by any factor, and even decision for recusal cannot be influenced by outside forces. 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. I have taken an informed decision after considering the nitty-gritty of the points at issue, and very importantly, my conscience. 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."

Past practice of judges, who have expressed views, being included in larger benches to decide correctness of such views

Justice Mishra cited several past instances of judges, who have expressed views as part of smaller benches, being included in larger benches constituted to examine the correctness of such views.

"there is a consistent practice of this Court which has evolved that the Judges who have rendered a decision earlier in smaller combination, have also formed part of the larger Bench, and there are umpteen occasions as mentioned above when Judges have overruled their own view.", Justice Mishra observed.

Predisposition as to legal issue will not give rise to apprehension of bias

Justice Mishra rejected the petitioners' arguments that predisposition towards a particular view was a ground for recusal.

"There is no question of recusal on pre­disposition as to the legal issue or as to the relief to be granted, such an apprehension also is baseless.

The ultimate test is that it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by any fact or law and is able to take an independent view"

Justice Mishra said that previous judgment cannot constitute bias.

"The previous judgment cannot constitute bias, or a pre­disposition ­ nor can it seem to be such, so as to raise a reasonable apprehension of bias. Nor can expressions through a judgment (based on the outcome of arguments in an adversarial process) be a "subject matter" bias on the merits of a norm or legal principle, or provisions.

 "Accepting the plea of recusal would sound a death knell to the independent system of justice delivery where litigants would dictate participation of judges of their liking in particular cases or causes".  

Recusal for the judge to decide

Recusal is an issue to be decided by the judge and not the litigant. Allowing requests for recusal at the mere asking will lead to bench hunting practises.

"If recusal is made, it would tantamount to giving room to unscrupulous litigant to have a Judge of their choice who can share the views which are to be canvassed by them. No such right can be given to any person under the aforesaid guise; there is no cause for any apprehension. There is no room to entertain the same.

The plea cannot be termed anything other than Bench hunting, if it is said that until and unless the one which suits a litigant is found the matters are not to be argued to recuse."

"If requests for recusal are acceded to for the asking, litigants will be unscrupulously taking over the roster making powers of the Chief Justice and that would tantamount to  interference with the judicial system, by the mighty to have a particular Bench by employing several means and putting all kinds of pressures from all angles all around. It is the test of the ability of the judicial system to withstand such onslaught made from every nook and corner. Any recusal in the circumstances is ruled out, such prayer strengthens the stern determination not to succumb to any such pressure and not to recuse on the ground on which recusal sought because for any reason, such a prayer is permitted, even once, it would tantamount to cowardice and give room to big and mighty to destroy the very judicial system. Moreover, recusal in such unjustified circumstances, would become the norm". 

 In concurring opinion,  Justice Vineet Saran, Justice M.R. Shah and Justice S. Ravindra Bhat agreed with Justice Mishra and said:

"We concur with his reasoning and conclusions that no legal principle or norm bars his participation in the present Bench which is to hear the reference; the precedents cited and the practice of the court, point to the contrary, i.e. that the judge who decided a previous cause, finally, can – and very often has- participated in the later, larger bench to which such previous decision is referred for reconsideration. "

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