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Why Justice Arun Mishra was after all right in refusing recusal

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
 

By orders dt.23rd Oct,2019, the Supreme Court  rejected the plea for the recusal of Justice Arun Mishra from heading a Constitution Bench. On October 12,2019 the Supreme Court notified that a 5-judge constitution bench, headed by Justice Arun Mishra, and comprising of Justices Indira Banerjee Vineet Saran, MR Shah and Ravindra Bhat would begin hearing five matters related to the Land Acquisition Act from October 15. The Constitution Bench of the Supreme Court on Oct,16 reserved orders on the plea for recusal of Justice Arun Mishra from hearing the matters. The Constitutional Bench reference came about over conflicting views on the meaning and import of the expression ‘paid’ under the relevant statute, between two benches of 3 Judges’ each. Let us refrain from getting into the legal thicket. Except to suggest that if the Justice Arun Mishra led 3 Judges’ bench decision prevailed on the expression ‘paid’, over that of the other 3 Judges’ bench. Then all the acquisitions coming under its impact may be upheld. New and fresh acquisition proceedings could be avoided.

Judicial disqualification, also referred to as recusal, is the act of abstaining from participation in a legal proceeding due to conflict of interest. Ordinarily, we have had instances of ‘recusals’ by judges’ themselves as a ‘call of conscience’. (5 Judges had recently recused themselves  from hearing Gautam Navalakha case).  The conflict of interest could arise from say ‘financial interest’. But, it is highly regrettable that in recent times, we have the spectacle of parties themselves moving applications or motions seeking ‘recusal’ of a Judge alleging ‘possible bias’.

  1. vs Sussex Justices, (1924 – England) is the classic Englishcase on the impartiality and recusal of  judges. It brought into common parlance the oft-quoted aphorism “Not only must Justice be done; it must also be seen to be done. In 1923 Mc Carthy, a motorcyclist, was involved in a road accident which resulted in his prosecution before a magistrates Court for dangerous driving. Unknown to the defendant and his solicitor, the clerk to the justices was a member of the firm of solicitors acting in a civil claim against the defendant, arising out of the accident that had given rise to the prosecution. The clerk retired with the justices, who returned to convict the defendant.

On learning of the clerk’s provenance, the defendant applied to have the conviction quashed. The justices swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk.

The conviction was set aside holding that – “The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices’ affidavit, but they show very clearly that the deputy clerk was connected with the case…and if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction.”

Be that as it may, it is singularly unfortunate that ‘legal issues’ or ‘view’ taken by a Judge could be taken for possible ‘attribution of Bias’. Recently, in an interview Harish Salve, the eminent constitutional lawyer took serious exception to such brazen attempts being made by counsel seeking ‘recusal’, as if it was a matter of right and mere imputation of ‘possible bias’, would suffice to disqualify the right of the Judge to hear. Salve pointed out Chief Justice P.N. Bhagwati had unhesitatingly changed his views, as Judge, from one Bench to another, by evolution of time. It was nothing shameful to do so, as views of a Judge were not cast in stone. It was always possible to persuade them to a different point of view. For instance, US Supreme Court boasts of a 9 judges’ Bench always. They serve life time also .Times without number, the same issue of abortion, immigration, affirmative action, LGBTQ rights et al, arise. A few of them may have taken a view already on the issues. That did not mean that counsel can ask the Judges’ to recuse themselves, as they cannot perform their role ‘impartially’ or without ‘bias’.It is never done.

Our man for all seasons, late, lamented Justice Antonin Scalia, US Supreme Court, has hit the nail on the head against such unwarranted recusal motions. In his own felicitous poetic language he came down heavily on a party in appeal, who relied on a series of news reports, including Editorials arguing for his recusal. It was a case where Scalia was slated to hear an appeal from a Department, concerning Vice President Dick Cheney, a friend for years, with whom Scalia was seen on hunting trips. The accusation therefore was that Scalia ‘cannot be seen to be unbiased’. In a 21 page memorandum, historical from a 200 year old institution, Antonin Scalia tackled the issue head-on.

“The implications of this argument are staggering. I must recuse because a significant portion of the press, which is deemed to be the American public, demands it.  …. Of course it can be claimed (as some editorials have claimed) that “times have changed,” and what was once considered proper….is no longer so.,,,, My recusal would also encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons….. As the newspaper editorials appended to the motion make clear, I have received a good deal of embarrassing criticism and adverse publicity in connection with the matters at issue here – even to the point of becoming (as the motion cruelly but accurately states) “fodder for late night comedians’. If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot. The motion is Denied”.

One recalls a rebuke from late Justice M. Srinivasan, then before Madras High Court, apt as well “What sort of argument are you advancing? You have made unjustified allegations against the Judicial officer, to seek a transfer from his Board.  And then when this court refuses, you suggest – now that I have made so many allegations against the Judicial officer, how can I expect justice from him. Most unbecoming affront to the independence of Judiciary .  One more word, you will be visited with exemplary costs. Do not seek such reliefs. It denigrates the institution. It is degenerating and utterly contemptible”.

Seeking recusal is not an offence. But seeking recusal on ‘legal issues’ does no credit to the cause. It may have been easy for Justice Mishra to yield. He deserves praise for standing up. It redounds to the institution’s image.

(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court).

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

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