Judges and Recusal: The Issue Is Propriety, Not Bias

Where there is a bonafide feeling that recusal would serve the ends of justice, judges should consider this impassionately without any ego.

There is an inflamed controversy as to when judges should recuse themselves from hearing a case. By now this should be reasonably obvious. But the controversy has been brought to the fore by unhappiness that Justice Arun Mishra refused to recuse himself in a case on which he had admittedly strong views stated in a Supreme Court judgment on the subject of the manner of payment of compensation to be awarded in certain classes of cases under the old Land Acquisition Act 1894. It would be difficult to sustain a broad proposition that judges with strong views, or for that matter strong views on a particular area, should never hear cases on which they have strong views.

I will refer to judges with unmitigated strong views as ‘strong judges’ for shorthand. If this was taken to its logical conclusion, not only would such judges never hear cases in controversial matters, but there would be a case for not appointing ‘strong judges’ at all. There is a difference between ‘strong’ and ‘bad’ judges. The ‘bad’ judges are incapable of doing justice either procedurally (because they do not have the temperament of being a judge) or substantively. But ‘strong judges’ are the warp and woof of the law by creatively evolving the law in their time and across decades if not centuries. Some strong judges have obstructed the advancement of the law. But that is another matter.

Also Read: Land Acquisition Case: Justice Arun Mishra Will Not Be Recusing Himself

The best way in which a lawyer can handle a ‘strong’ judge is captured in an apocryphal exchange between Supreme Court Justice J.C. Shah and attorney general C.K. Daphtary. Shah strongly asserted he had taken a different view on a judicial decision in the high court before his elevation to the Supreme Court. Daphtary promptly retort: “My Lord it is not too late to repent.” For public opinion and lawyering to change the mind of a receptive judge is a challenge.

Many ‘bad’ judges have been appointed to the Indian judiciary, and many judges have turned out to be ‘bad’ either temperamentally or in accepting inducements or being influenced by those in power. It is true that many lawyers feel that Justice Arun Mishra is off-hand, peremptory, even downright rude, in ways that do not befit the discourse of the Supreme Court. I do not wish to go into that area of controversy. Whatever I have had to say on this, I have already stated to the judge directly in court. But this may have been one reason why the recusal controversy over Justice Mishra arose: a lack of confidence in the judge to deliver justice in this case.

But such a view can never be a case for the recusal of Justice Mishra, but only for lawyers declining to appear before him as long as he remains in office. This is as imperfect an answer as banging one’s head against a wall. Anything else would bring the working of the Indian judiciary to a halt. It is a widely held view that those appearing before him look forward to his retirement with relief.

The former Chief Justice of India (CJI) Ranjan Gogoi is largely responsible for the recusal controversy. During his term as the CJI, Justice Gogoi used his power as ‘master of the roster’ to allocate cases to the ‘Arun Mishra bench’ and constituting benches which were ‘Gogoi friendly’. It is naïve to suggest that the reason why lawyers wanted Justice Mishra’s recusal was simply because he was likely to reiterate what he had already decided in detail in the case under reference.

In the recusal case, Justice Mishra has written a long-winded judgment forwarding his own following justifications in his own defense: (i) The CJI as “the repository of constitutional trust” has correctly decided to constitute this Bench because he is the master of the roster which allocates cases (ii) If the lawyers will find it difficult to argue before him, there is ‘no dearth of talent in the bar’ to do so. (iii) The present controversy was really a case of forum shopping (iv) There was no real danger to justice or loss of faith in the judiciary because since 5 judges were going to decide the case, Mishra could be outvoted if he held on to his view and (v) his ‘conscience’ would block any injustice.

A view of the Supreme Court. Credit: PTI/Ravi Choudhary

Justice Gogoi’s responsibility

Justice Gogoi, as the CJI, is responsible for this controversy for two reasons. While constituting the five-judge bench, he should have included Justice Mohan Shantanagoudar. The reason for this is that in the very case in which Justice Mishra held his ‘strong view’, Justice Shantanagoudar took exactly the opposite view equally strong. It is true that judges who refer a matter to a larger bench often sit in the larger bench, unless told informally or otherwise that they should not do so. Justice Mishra is not to be compared with Justices Bhagwati or Krishna Iyer, who were open to being juristically persuaded to change their view and did without annoyance. But let that pass.

The real issue here is that the bench constituted by then-Chief Justice Gogoi was unbalanced when leaving out Justice Shanatanagoudar, who held a totally different and opposite view and was still available for inclusion in that five-judge bench. What should Justice Arun Mishra have done? He should have told the then-chief justice that it would be fair to include Justice Shanatanagourdar. Having insisted on this, his duty might have been over.

Hitherto, the CJI’s power as master of the roster to allocate work to judges and constitute benches was not controversial. It was made controversial by Chief Justices Dipak Misra and Gogoi because they used this power to protect themselves.

Also Read: Full Text: Why Harsh Mander Wanted CJI Gogoi to Recuse Himself From Assam Case

But the second reason why Justice Gogoi’s fairness in recusal matters is suspected is because he himself did not believe in fairness in recusal matters. Following the government’s takeover of the International Centre for Alternative Dispute Resolution, an aspect of the matter came before the Supreme Court. It came before Justices Khanwalikar and Nageshwar in succession but, on April 12 and 24, 2019 respectively, both judges recused themselves because they were members of a committee in that International Centre.

On July 8, 2019, that matter came before a bench presided over by then-CJI Gogoi. One relevant fact is crucial. Justice Gogoi was the chairperson of the committee of which Justices Khanwalikar and Nageshwar Rao were members. But an angry CJI Gogoi refused to follow the example of his colleague’s recusal and heard and dismissed the case because he was annoyed with the party before him even though he was the chair of a committee in that very institution. None of his brother judges (Justices Deepak Gupta and Aniruddha Bose) sitting with him protested. Nor indeed the unctuous solicitor general Tushaar Mehta. In my view, this refusal to recuse by CJI Gogoi in a case where he was conflicted was ‘gross misconduct’ and would open to and liable for impeachment.

Chief Justice of India Ranjan Gogoi. Credit: PTI

Most judges recuse themselves if they feel a reasonable apprehension of bias. The classic example is that of Lord Cottenham in 1852 to hear a matter in which he had a few shares in the Grand Junction Canal. This is a precedent followed in our courts. Justice Sujata Manohar would not hear matters concerning a corporate house in which her family had shares. After hearing a Reliance matter, Justice Markandey Katju recused himself from an arbitration matter because his wife had shares in the conglomerate.

The most interesting example is that of a lawyer who apprehended that Justice Madan Lokur was going to decide the Diwali crackers case against him even though the judge has been hearing that matter for several days. The judge was told that he had dealt with the Diwali crackers issue as a lawyer decades ago. Though the lawyers’ tactics are to be deprecated, Justice Lokur recused himself and the matter went to Justice A.K. Sikri, who was more likely to rule against Diwali crackers.

An Allahabad judge found that one of the letters annexed in the case file was written by a distant cousin’s husband and, therefore, recused himself. Not directly related, but important enough to be told, is Justice S.N. Variava recalling his dismissal of a case and ringing me personally to tell me that, because he did not allow me to cite a legal precedent, my case was restored on a date of my convenience. Justice Krishna Iyer did something similar in a case argued by the late eminent counsel Sanghi.

Of note is Justice Hoffman’s recusal in the Pinochet case in which he had some connection with Amnesty International, which might have created an impression of bias even though the judge’s integrity was unparalleled and even though this meant the dictator would go free. This is what judges and judicial conduct is made off.

I call this a “1% rule”: where there is a bonafide feeling that recusal would serve the ends of justice, judges should consider this impassionately without any ego. This is not what happened in the ‘Justice Arun Mishra’ recusal case. He took umbrage at the suggestion, with great anger and intimations of spite. His long judgment citing cases on bias is clearly not written by him, except here and there and replete with cut and paste citations from cases in India and those drawn from the rest of the world. Justice Mishra virtually made it a personal issue to write in his own defence. Here was a classic case of a judge writing a long judgment in his own cause. His brother judges (Banerjee, Saran, Shah and Bhatt) quoted from an Indian case which cited an American case; and broadly agreed with one part of Justice Mishra’s reasoning that judges who have referred a matter to a larger bench can participate in the larger bench. But there is one strange paragraph in the seventh paragraph of the judgment of Justice Mishra’s colleagues which is significant:

“…We are of the opinion that the view of Mishra J. to reject the application for recusal, is not a matter that can be commented on by us.”

While saying that commenting on Justice Mishra’s recusal is their remit, the brother judges also hint, “Well done old chap.” What was totally lost sight of was that the issue was not ‘bias’ but ‘propriety’.

Lawyers’ objections

Can lawyers object to judges hearing a matter? Usually not. But lawyers do tell judges to consider whether there is a conflict of interest or because there are other reasons for the judge or bench not to hear the matter. Indeed, some judges recuse themselves if they feel there is a case for doing so. In the Babri first appeal case, Justice U.U. Lalit was reminded that he had appeared in an earlier criminal case concerning Babri as evidenced by the orders showing his appearance in the criminal case. On bringing this to the judge’s notice without any allegation of bias, Justice Lalit decided to recuse himself as a matter of propriety and within what I call the 1% rule. I think that it is the duty of lawyers to give voice to their bonafide apprehensions. The emphasis is on the word ‘bonafide’ not on unscrupulous forum shopping.

Also Read: Trust and Respect Have to Be Earned, Even by Our Judges

There is one other matter that needs discussion. Sometimes, judges take the unusual stance which goes something like this: “I know that I should not hear this case, but if you lawyers agree, I will proceed to hear it and pass judgment”. With this, the onus passes on the lawyer to agree to an impropriety. At this juncture, what is the lawyer to say? For many reasons, lawyers agree to the judge hearing the case because they do not want to attack the judge for unfairness, or prejudice their client’s case, or anger the judge in respect of future appearances before him or her.

This is precisely what happened in the Punjab corruption scandal case, where the judge had been party to a decision which was under challenge. When the matter came to the Supreme Court in 2006, Justice S.B. Sinha rightly observed that he “failed to understand why two senior judges who had headed the Committee should have been made part of the Bench” even if a concession was made by the lawyers to agree to their participation. Justice Dalvari Bhandari did not agree because a concession once made could not be withdrawn. But such concessions are not about facts but the very jurisdiction of the court to proceed on the basis of an impermissible injustice. I am almost certain that Justice Bhandari would maintain this latter view in the International Court of Justice, where he is a judge.

For the purpose of this recusal controversy, I do not want to revisit issues relating to any judge not hearing matters properly. That is another matter altogether. Unfortunately, India does not have a method to deal with complaints about a judge, short of impeachment. Other jurisdictions have effective systems of complaint and discipline. We don’t. This is an important area to develop to prevent our judges becoming arrogant, indisciplined and a law unto themselves with disastrous effects on the faith of people in the judiciary to dispense justice.

For the present, it needs to be said that the lawyers were right to express their apprehensions about Justice Mishra’s inclusion in the bench hearing the land acquisition case. Then-Chief Justice Gogoi could have resolved the problem but did not. Justice Arun Mishra’s long judgment in his own case begs precisely the question of propriety which lawyers placed before him in a bench that was not fairly constituted. Eventually, even his colleagues’ defence of his stance was half-hearted, guarded and contradictory. Justice was ill served by the judges closing ranks to defend a colleague.

Rajeev Dhavan, senior advocate.