Wednesday, 26 January, 2022
HomeOpinionRecusal has become a selective call of morality for Supreme Court judges

Recusal has become a selective call of morality for Supreme Court judges

Several Supreme Court judges, including CJI Gogoi, withdrew from activist Gautam Navlakha’s bail plea case. But judges don’t recuse when they should.

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There is some confusion about the recusal by several Supreme Court judges from hearing the appeal filed by rights activist Gautam Navlakha to quash the FIR against him in the Bhima Koregaon case. The confusion is about the reasons and about the exact number of judges who recused. Both these are a cause for worry.

Some reports put the number of judges who recused at five, others say three.

Whatever the number, the fact remains that none of the judges gave a reason why they couldn’t or shouldn’t hear the case. The confusion over the number of judges who recused only goes to highlight the opaque manner in which judicial recusals are dealt with by the higher judiciary.

Bigger issue of propriety

But it isn’t just the number of times that judges of the high courts or the Supreme Court have recused from hearing important cases without advancing any reason. Equally important is the number of times judges have decided to ignore judicial propriety to hear and decide cases in which they were themselves a party or which had a direct connection with them.

They simply ignored the dictum: Nemo judex in causa sua, which means no one should be a judge in his/her own cause.

Here are just a few recent examples:

When a woman employee of the Supreme Court accused Chief Justice of India (CJI) Ranjan Gogoi of sexual harassment, the CJI decided to hear the case himself. In the process, he opened both himself and the judiciary to the charge of being wrong on law and morality.

During hearing of the matter by a bench that he was heading, CJI Gogoi made several claims, almost giving himself a clean chit. He described the former Supreme Court staffer’s allegations as part of a larger conspiracy against his office and raised the bogey of judiciary’s independence being under a “very serious threat” and that some forces wanted to “deactivate” the office of the CJI.

There were many, including senior Supreme Court lawyers’ associations, who questioned CJI Gogoi’s decision and conduct in hearing the sexual harassment case against him.

Also read: Supreme Court collegium’s 2 recent decisions have left the door wide open for tough questions

CJI Gogoi leads from front

CJI Ranjan Gogoi also decided against recusing from hearing a PIL highlighting the “sub-human” living conditions of detenues in Assam’s detention centres. He told activist Harsh Mander, who had sought his recusal on the grounds that oral observations by the CJI during earlier hearings had been used by authorities to detain and deport more people, that his plea had “enormous potential to damage the institution” and that the CJI’s recusal would mean the “destruction of the institution”.

The bench led by CJI Gogoi didn’t just stop at that but removed petitioner Harsh Mander as the main litigant in the case, replacing him with the Supreme Court Legal Services Authority.

That the same CJI did not see any “destruction of the institution” while recusing from hearing activist Gautam Navlakha’s bail plea can be a bit ironic. Unlike other cases, where CJI Gogoi was listing out why he wouldn’t recuse from the case – the judiciary would “crumble” – he didn’t offer any reason why he was recusing from hearing Navlakha’s bail plea. Although many linked his recusal to the fact that he was busy hearing the Babri Masjid-Ram Janmabhoomi land title dispute, which he wants to complete before his retirement on 17 November.

In another petition, this one dealing with the Centre’s takeover of the International Centre for Alternative Dispute Resolution (ICADR), CJI Gogoi was requested by ICADR counsel senior advocate Rajeev Dhawan to recuse from the bench since he was ex-officio chairman of the ICADR.

However, the three-judge bench headed by CJI Gogoi rejected the plea, saying, “Even if the said statement is correct, we do not see any hindrance or difficulty for this Court to entertain the present special leave petition in view of the order that the Bench is proposing to pass.”

It then went on to dismiss the petition.

Also read: Of SC’s 4 new judges, one junked plea against Yogi and another brought CJI under RTI

History of being judge in own cause

CJI Gogoi’s predecessor Justice Dipak Misra was no better when it came to following the high standards of judicial propriety by not being a judge in his own cause.

Activist-lawyer Prashant Bhushan requested CJI Mishra to recuse himself from hearing the medical college scam case, in which at least one former judge is an accused and in which the CJI’s own conduct was under the scanner.

However, CJI Misra rejected the plea.

During hearings in the National Judicial Appointments Commission case, there was a plea by senior advocate Fali Nariman, asking Justice Jagdish Singh Khehar, who was in line to be the next CJI, to recuse from hearing the case since he was a member of the collegium.

In a unanimous decision, the bench rejected the plea.

Justice Khehar himself wrote: “If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection.”

As CJI, Justice Khehar said that the Supreme Court was finalising guidelines that would make it compulsory for judges who recuse in cases to inform the registry in writing and also give reasons for doing so.

In fact, in his concurring judgment in the NJAC case, then-Supreme Court judge Kurian Joseph had also spoken of the need for judges to give reasons while recusing from a case.

“Being an institution whose hallmark is transparency, it is only proper that the judge discharging high and noble duties, at least broadly indicate the reasons for recusing from the case… it is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case,” Justice Joseph said.

The problem is that there is hardly any judge today who seems to be following this laudable suggestion.

The author is a senior journalist. Views are personal.

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  1. CJI Gogoi was also a member of the Gang of Four who defied the propriety of the Apex court with political motive. Also He sat jn judgement in his case and made the complainant the Acused!His sermons of chastity is of Whore!The Collegium itself is nothing short of the Hammer to finished opponents only.

  2. When the lawyers ask a judge to recuse himself, they are effectively doing forum hunting. This is simply impermissible. Litigant cannot chose before whom he has to argue his case. But, recent recusal of five judges in Gautham Navlakha’s case is alarming. Can the judges refuse to decide the matter assigned to them? Can an IAS Babu refuse to do work assigned to him? When a string of five judges recuse themselves from hearing an alleged Naxal supporter’s case, we are alarmed. We wonder in what way these judges were directly or indirectly associated with the accused?

    • When a lawyer asks to recuse and he gives cogent reasons, such as the Arun Mishra having overturned several years of precedent in the land case, it is justified to asked them to recuse, as the Hindu says. If another bench agrees with mishra, then there is no judicial issue of error or propriety else the constitutional bench is clouded with such problems.

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