Assam Detention Centres: Harsh Mander's Plea for CJI Gogoi's Recusal Dismissed

Stating that “recusal is destruction of the institution (and) we will not allow anyone to disrupt the institution”, the CJI replaced Mander as the petitioner with the SC Legal Services Authority.

New Delhi: The Supreme Court on May 2 dismissed a petition filed by activist Harsh Mander seeking recusal of Chief Justice of India Ranjan Gogoi from hearing his writ petition filed at the apex court drawing attention to the abject condition of foreigners kept in six jails in Assam.

Those detainees, said to be around 900, were declared foreigners by the special tribunals functioning in the state.

Mander’s case is being heard by a three-member bench comprising the CJI and Justices L. Nageshwar Rao and Sanjeev Khanna. However, after some observations made by the CJI in the last hearing on April 25, Mander has sought his recusal suggesting possible “bias” in the outcome of the case. 

On May 2, refusing to recuse himself from hearing the case, Justice Gogoi instead removed the name of Mander from the petitioner’s list and replaced him with the Supreme Court Legal Services Authority and named lawyer Prashant Bhushan as the amicus curiae.

Also read: Detention Centres in Assam Are Synonymous With Endless Captivity

Bhushan, who was Mander’s counsel in the case, is said to have refused to move the petition seeking the CJI’s recusal from the case. Mander, who represented himself in the court on May 2, mentioned that he was no longer using the legal services of Bhushan in the case.

Giving reasons for seeking the CJI’s recusal from the case, Mander submitted to the court that he was “constrained” by the “oral remarks of the honourable chief justice in some hearings” which led “to the apprehension that my petition seeking humane treatment of the foreigners and alleged foreigners in detention camps and the ending of their indefinite detention, in accordance with their fundamental right to life under Article 21 of the constitution, appears to have been turned on its head by the honourable chief justice.”

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Mander said, “He, by his remarks and observations in a series of hearings, appears to use the same petition instead to seek detention of tens of thousands of more persons in these detention centres, and the repatriation of deemed foreigners by the state of Assam without ensuring that the principle of rule of law and the international law principle of non-refoulement are adhered to.”

In the last hearing of the case this past April 25, Assam chief secretary Alok Kumar suggested conditional release of those detainees who have completed five years in custody. The CJI, however, severely castigated him and the state government for failing to deport the foreigners and instead violating the Constitution by undermining the legal procedure set up through the tribunals to detect foreigners in the state.

Also read: The Death of Amrit Das and the Search for Foreigners in Assam

Referring to the chief secretary’s suggestion in an affidavit submitted to the court, Mander submitted to the court on May 2 that though the conditions he stated for the release of the detainees “were too onerous” as “the international law lays down maximum detention in these cases for six months”, the affidavit “still opened a small window of hope that the state for the first time was willing to even consider the release of these persons. But the honourable Justice Gogoi made a series of very troubling remarks as reported in the press.”

Countering Mander, the CJI reportedly said, “You have to learn to trust your judges. Observations are made by judges to test the case. What was said in course of debate in court cannot be implied as bias. How can you say the CJI pre-judged the matter?”

He also asked him, “What If we tell you have been set up by Assam government?” Mander replied, “I would simply say it is completely untrue.” The CJI said what was said in the debate was misinterpreted by Mander as the judge’s opinion.

Stating that “recusal is destruction of the institution (and) we will not allow anyone to disrupt the institution”, the CJI replaced Mander as the petitioner with the SC Legal Services Authority.