Mumbai: On February 4, 2023, while handling the bail applications in the 2019 Jamia Millia Islamia violence case, additional sessions judge Arul Varma observed, “Dissent is nothing but an extension of the invaluable fundamental right to freedom of speech.” Subsequently, discharging 11 persons, including Jawaharlal Nehru University student and activist Sharjeel Imam, Varma added that the police had “not arrested the actual perpetrators” and submitted “ill-conceived chargesheets”. He called the student activists arraigned in the case “scapegoats” and added that the police had “trampled the rights of the accused”.
Though many students and activists were violently attacked at Jamia on December 15, 2019, they ended up getting accused of inciting and participating in the violence. Judge Varma’s sharp observations – made some three years after the incident, and the incarceration and criminalisation of the students, researchers and activists – felt like an indication that the judiciary had finally seen through the police’s questionable investigation. The feeling, however, was very short-lived. Within days, Varma cited “personal reasons” and recused himself from the case.
“Due to personal reasons, the undersigned hereby recuses from hearing the matter. Accordingly, let the present matter be put up before learned principal district and sessions judge, South-East district, Saket court for February 13 at 12 pm, with a request to transfer the matter,” Varma wrote in his last court proceeding in the matter.
On March 28, the Delhi high court set aside Varma’s order discharging Imam and the others.
Varma’s recusal predictably led to speculation about possible pressure from the Delhi police or the ruling BJP government at the Centre. Nothing was ever firmly established. But his recusal is not the first in politically sensitive cases in the recent past. Many judges have either recused themselves or been transferred from a case just when matters were keenly poised.
Generally, judges only refrain from hearing a case if they have any personal interest, association, or stakes in the matter, or, if they have legally represented any of the accused persons in the past. But instances of judges recusing themselves when these criteria are not apparent have been rising over the past few years.
Here’s a recap of a few significant cases from the past decade where recusals and transfers appeared to be just as curiously timed as judge Varma’s.
Delhi riot cases: A sudden midnight transfer for Justice S. Muralidhar
On February 26, 2020, a division bench of the Delhi high court presided by Justice S. Muralidhar passed orders on matters pertaining to the ongoing Delhi riots that became an important anchor for relief efforts. First, Justices Muralidhar and A.J. Bhambhani held an emergency sitting past midnight following an urgent plea from counsel representing the Al Hind Hospital in Mustafabad, North East Delhi, one of the worst affected regions in the riots. The hospital sought the court’s intervention to direct the Delhi police to help it shift over 20 persons injured in the riots to the government-run GTB Hospital where they could receive proper treatment. The police had ignored their calls for help and it was only after the high court’s order that the patients could be safely escorted out.
Later the same day, another bench headed by Justice Muralidhar pulled up the Delhi police for not investigating complaints made against Anurag Thakur and other BJP leaders for incendiary speeches they had made in the run-up to the Delhi riots.
The same night, a notification was issued by the Union government transferring Justice Muralidhar to the Punjab and Haryana high court. His transfer had been recommended by the collegium on February 12, 2020 but was not notified till then. He did not get the customary two weeks that judges usually get to wrap up business and complete their handing-over process.
From Punjab, Justice Muralidhar was transferred to Odisha on January 4, 2021, where he is currently chief justice of the high court.
A transfer in the Nanded blast case of 2006
Sixteen years after a bomb exploded at the residence of a Nanded-based Rashtriya Swayamsevak Sangh (RSS) worker, a former veteran functionary of the organisation, Yashwant Shinde, moved an application before a special CBI court claiming that several senior right-wing leaders were directly involved in the incident. Shinde, after having spent 25-odd years in the RSS and other allied right-wing organisations, claimed to have had a “change of heart” and petitioned the court to be made a witness. In his application, he claimed to know of the alleged involvement of Milind Parande, currently secretary general of the Vishwa Hindu Parishad, in an alleged training camp underway to “carry out blasts across the country”.
According to the prosecution, an explosion occurred at the house of one Laxman Gundayya Rajkondwar on April 5, 2006. In the blast, his son, Naresh Rajkondwar, and his son’s friend, Himanshu Panse were killed. The police investigation later revealed that both Naresh and Panse were killed while assembling a bomb.
Shinde’s application created a furore. The CBI-investigated case, which had otherwise moved at a snail’s pace and been almost forgotten, suddenly made headlines. Shinde’s application had given what was thought to be a crime of ‘local’ nature a larger context and implicated higher functionaries of the RSS and other right-wing organisations.
The first hearing of Shinde’s application happened before A.R. Dhamecha, an additional district judge of the Nanded CBI court. Dhamecha, who was willing to accommodate Shinde’s application, was transferred to another court soon after. Here too, no reasons were given and it was termed a regular “administrative transfer”. Shinde alleged that the sudden transfer was part of the larger conspiracy to keep him and his allegations out of the case and ensure all the accused implicated were eventually let off.
Sessions judge J.T. Utpat and the Sohrabuddin case
Judge J.T. Utpat was presiding over the special CBI court and handling the alleged encounter killing of Sohrabuddin Shaikh, his wife Kausar Bi and associate Tulsiram Prajapati until 2014. Piqued by Amit Shah’s repeated failure to appear in court, Utpat had ordered the BJP leader to present himself on June 26. But one day before that, on June 25, 2014, he was transferred to the Pune sessions court.
A few weeks after Utpat was transferred, Brijgopal Harkishan Loya was assigned to the court. He continued to handle the case for the next five months till his mysterious death on December 1, 2014. The Supreme Court declined to order a probe into his death and claimed he died of natural causes, but some Loya family members insist there may have been foul play.
Recusals in Elgar Parishad case
The Elgar Parishad case against 16 human rights defenders has gone through several twists and turns over the past five years. Both the state and the Central agency’s role, the subsequent investigations and the electronic evidence allegedly gathered from the accused have faced severe criticism. Even five years later, the trial is yet to commence and those imprisoned have been moving bail applications at different levels. In some of these matters, a number of judges from the Bombay high court and the Supreme Court have recused themselves.
Supreme Court recusals
- “List the matter before a bench in which I am not party,” Justice Ranjan Gogoi had said on September 30, 2019, recusing himself from hearing a plea filed by civil rights activist Gautam Navlakha challenging the Bombay high court order refusing to quash the FIR lodged against him in the Elgar Parishad case. Justice Gogoi, now a Rajya Sabha member, was Chief Justice of India at that time. Gogoi didn’t give any reasons for his sudden recusal. But there was speculation that Gogoi’s recusal was because of the paucity of time. He was to demit office on November 17, 2019, and ought to have finished all pending cases before that.
- A day after Gogoi’s recusal, another Supreme Court judge – B.R. Gavai – recused himself from hearing Navlakha’s application. The reason for the recusal was unstated but not seen as unusual by counsel.
- On October 4, 2019, Justice Ravindra Bhat of the Supreme Court too recused himself. He was scheduled to hear the same application filed by Navlakha. His recusal too was not seen as unusual or controversial.
- Very recently, on January 12 this year, Justice Dipankar Datta recused himself from hearing the bail pleas of civil liberties activists Vernon Gonsalves and Arun Ferreira. Justice Datta too didn’t cite any reason for his recusal and the matter was later taken up by a bench that Justice Dutta was not a part of.
High court judges
1) Posthumously hearing the appeals filed by the late Jesuit priest Stan Swamy in the Elgar Parishad case in July 2021, the Bombay high court’s Justice S.S. Shinde remarked that the tribal rights activist was a “wonderful person” and the court has “great respect” for his work. Within days, Justice Shinde withdrew his remarks after the National Investigating Agency claimed before the court that the HC judge’s statements were ‘wrongly reported’ in the media.
“Suppose you are hurt that I personally said something, I take those words back,” Shinde said, a day after making the statements. “Our endeavour is always to be balanced. We have never made comments… But you see, Mr [Additional Solicitor General Anil] Singh, we are also human beings and something suddenly happens like this…”
It was the bench led by Justice Shinde which had pronounced two major orders in the case, granting bail to two accused – Telugu poet Varavara Rao and lawyer and activist Sudha Bharadwaj.
In February 2022, Shinde recused himself from the matter, without giving any reasons.
2) In January 2022, Justice Prasanna B. Varale recused himself from hearing the plea by Rao seeking an extension of medical bail. Thereafter, Justice Varale also recused himself from hearing other Elgar Parishad matters, leading the matters to be transferred to an alternate bench led by Justice Shinde.
3) Among other high court judges who recused themselves from the case without citing reasons are Justice Sadhana Jadhav, Justice Revati Mohite-Dere and Justice Nitin W Sambre.
‘Make grounds for transfers and recusals public’, say former judges
In the matter of transfer of judges in higher courts, the President of India transfers a judge from one high court to any other high court based on the recommendation of a committee comprising the CJI and the two senior-most judges of the Supreme Court. The Memorandum of Procedure speaks of transfer of judges, detailing how “Article 222 of the constitution makes provision for the transfer of a judge (including chief justice) from one high court to any other high court. The initiation of the proposal for the transfer of a judge should be made by the CJI, whose opinion in this regard is determinative. Consent of a judge for his first or subsequent transfer would not be required. All transfers are to be made in public interest i.e. for promoting better administration of justice throughout the country.”
But all this does not apply to lower courts. What is happening in the lower court is a change in assignments. Extraordinary or unusual changes in assignments are hard to pin down as being irregular, even if some may well be.
Anjana Prakash, a former judge of the Patna high court, told The Wire “things were different” when she was still a sitting judge. “When judges would be transferred, you would know it had to be a serious matter. The stigma of sudden transfer followed them everywhere,” she recalls.
The retired Bombay high court judge Abhay Thipsay says recusals are not a new phenomenon but says “they often go unaccounted and unexplained”. Thipsay says there could be several reasons why judges recuse themselves. “Among the widely known reasons are judges having appeared for one of the many parties as a lawyer in the past or their juniors or seniors (while practicing as lawyers) are appearing in the matter. The judges could even share friendly or blood relationships with one of the parties.”
From his experience of having served as both a district courts judge in Maharashtra and the Bombay high court, Thipsay also adds that some judges simply don’t want to get involved in complicated matters. In some cases, he says, the state machinery also tries to convince judges to side with them. “Anticipating the mess that they would end up in, the judges simply choose to stay away from the matter. As judges often don’t share grounds for recusals, these reasons for recusals are never known publicly.”
Justice Prakash also feels transfers, and more importantly recusals, should not happen without making the grounds public. “After all what is justice? A courtroom is called an open courtroom so that its procedures are public and transparent. When a judge recuses herself without disclosing the ground, she is also contributing to making the justice system that much less transparent,” she feels. Recusals also have an impact on the speedy disposal of the matter, she adds. “The chief justice has to reallocate the case. The matter gets pushed down on the list, causing inordinate delay in the hearing,” Prakash says.