India: To Recuse Or Not To Recuse: The Supreme Court's Hamlet Moment In The Recent Ruling On Recusal Of Judges

A Constitutional Bench of 5 Judges of the Supreme Court recently passed its orders in the case of Indore Development Authority v. Manhohar Lal & Ors. (SLP (C) 9036-9038/2016)- the "Indore Development Recusal Matter", in which the Court decided on the application seeking the recusal of one of the judges in the matter. These Orders now share the field on the issue of recusal of Judges together with the earlier majority, but separate Judgements given by another Constitutional Bench in the year 2016 in the case of Supreme Court Advocates-On-Record Association and Anr v. Union of India (SC-AOR Matter). ¹ The rulings in both sets of cases are however not harmonious with each other, and are likely to create confusion for some time, at least till such time that a larger bench of seven judges bench is constituted to decide the issue; or the Supreme Court itself formulates rules governing recusal), as had been suggested by Justice Lokur in his separate judgement in the SC AOR Matter.

Background

It is first important to understand the context of the Indore Development Recusal matter, which originated in the replacement of the Land Acquisition Act, 1894 ("1894 Act"), by the Right to Fair Compensation and Transparency and Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("RFCTRA"). While repealing the 1894 Act, the RFCTRA in section 24 provided for dealing with land acquisition proceedings initiated under the 1894 Act, and stated in sub-section (2) that where an award five years of compensation had been made five or more years prior to the commencement of the RFCTRA, but the physical possession of the land has not been taken or the compensation has not been paid, then the land acquisition proceedings shall be deemed to have lapsed and the appropriate Government.

The scope and applicability of Section 24(2) of the RFCTRA has come up for interpretation several times before the Supreme Court: in 2014, a three judge bench in the case of Pune Municipal Corporation v. Harakchand Misirimal Solanki & Ors² held that if the amount of compensation had not been paid, (i.e. deposited in the bank account of the original land owner), within a period of five years of the award 1894 Act, the land acquisition process would lapse. In 2015, another three judge bench in the case of Sree Balaji Nagar Residential Assn v. State of Tamil Nadu³ held that if an authority had not taken physical possession of the acquired land within five years of the award under the 1894 Act having been made, then the acquisition would lapse. These cases held the field on the issue of lapse of land acquisition proceedings under the 1894 Act till a fresh spate of conflicting decisions stated emerging from 2016 onwards.

In 2016, a two-judge bench of the Supreme Court in the case of Yogesh Neema & Ors v. State of Madhya Pradesh⁴ raised doubts on the correctness of the earlier Supreme Court decision in Sree Balaji Nagar Residential Assc. v. State of Tamil Nadu and referred the matter relating to the interpretation of s.24 RFCTRA to the Chief Justice for reference to a larger bench for determination. Then on December 7, 2017, in the case of Indore Development Authority v. Shailendra & Ors⁵ ("Indore Development Authority Case Round 1"), a two judge bench of the Supreme Court, vide Order dated 7.12.2017 recommended to the Chief Justice that the issue of interpretation of s.24 RFCTRA be referred to a larger bench as there were issues not considered in the 2014 Pune Municipal Corporation Case. The Chief Justice then constituted a three (3) judge bench to adjudicate. This resulted in a judgment by 2:1 majority in the Indore Development Authority v. Shailendra⁶ ("Indore Development Authority Case Round 2"), which held that the Judgement in Pune Municipal Corporation case was erroneous and held the same to per incuriam. The literal meaning of "per incuriam" means "carelessness". Characterising a decision as per incuriam basically means that that decision was given in ignorance or forgetfulness of some statutory provisions or authority binding on the court concerned.

The 2018 Indore Development Authority Case- Round 2, was soon followed by yet another 3 Judge bench of the Supreme Court in the case of State of Haryana v. G.D. Goenka Tourism Corporation Limited,⁷ where it was argued that a three judge bench of the Supreme Court cannot hold the judgement of another three-judge bench as being "per incuriam" and any difference of views between two 3 Judge benches of the Supreme Court, should simply result in referral of the matter to a larger bench.

The Supreme Court directed that matters relating to s.24 RFCTRA at all High Courts and Supreme Court not be proceeded with till such time as a larger Bench of the Supreme Court determines the issue. Close on the heels of this order, were two separate cases, namely Indore Development Authority v. Shyam Verma⁸ and State of Haryana v. Maharana Pratap Charitable Trust, ⁹ where it was recommended that a larger bench of the Supreme Court should be constituted to consider all aspects including the Pune Municipal Corporation case and the Indore Development Authority Case Round 2.

Pursuant to the multiple references for a larger bench, the constitutional bench was constituted in March 2018, with the lead case being Indore Development Authority & Anthr v. Shyam Verma & Ors. ¹⁰ The holding of the Pune Municipal Corporation case as being per incuriam in the Indore Development Authority Case Round 2 was raised and, vide Order dated 06.03.2018 the Bench held that all aspects relating to s.24 RFCTRA including correctness of the decision rendered in Pune Municipal Corporation case will be gone into. The hearing on the matter was however deferred since the constitutional bench at that time was in the midst of hearing other matters.

Emergence of the Recusal Issue

With the passage of a few months, the original constitutional bench that had been constituted to hear the matters and issues relating to s.24 RFCTRA was reconstituted completely, following the retirement of then Chief Justice Deepak Misra. A new five-judge Constitutional Bench as reconstituted by Chief Justice Ranjan Gogoi, comprised of Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah and Justice Ravindra Bhat. The issue of recusal arose because Justice Arun Mishra had already delivered two judgements in both Indore Development Authority Case Round 1 and Indore Development Authority Case Round 2. Also, as explained earlier, in the Indore Development Authority Case Round 2, Justice Mishra was part of the majority ruling that had held that the Pune Municipal Corporation case to be a per incuriam judgement. The Petitioner before the Constitutional Bench, therefore, requested that Justice Arun Mishra ought to recuse himself.

Orders dated 23.10.2019 on "Recusal"

The full Bench of the Supreme Court presided by Justice Mishra heard the arguments and delivered two Orders dated 23. 10.2019 with Justice Arun Mishra holding that he was not required to recuse himself despite having adjudicated on the material question that had been placed for consideration before the Constitutional Bench. The other four judges of the Bench passed a separate order, concurring with the order of Justice Arun Mishra.

The key elements of Justice Mishra's ruling on his recusal, are as follows:

(i) It is for a judge to decide to recuse and that "the ultimate test is that it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by the fact or law and is able to take an independent view....in case the answer is that he will be able to deliver justice to the cause, he cannot and must not recuse from any case as the duty assigned by the Constitution has to be performed as per the oath and there lies the larger public interest."¹¹

(ii) It has been further held that "A judge rendering a judgement on a question of law would not be a bar to her or his participation if in a larger bench that view is referred for reconsideration. The previous judgement cannot constitute bias or a pre-disposition nor can it be seen as such. Nor can expressions through a judgement (based on the outcome of arguments in an adversarial process) be a "subject matter" bias on the merits of a norm or legal principle or provisions."¹²;

(iii) Giving a right to a party to seek recusal of a judge will amount to diluting the roster making power vested with the Chief Justice and once the Chief Justice has exercised his power it is not for the Judges to choose. If requests for recusal are acceded to for the asking, litigants will be unscrupulously taking over the roster making power of the Chief Justice and would tantamount to interference with the judicial system "would give room to big and mighty to destroy the very judicial system."¹³ Thus the Court has sought to impose a duty on Judges to not recuse, except if they feel they cannot deliver justice in the matter.

Recusal: The Continuing Grey Areas

Justice Mishra's order in the Indore Development Recusal Matter seeks to rely on the Judgement of Justice Chalameswar and Justice Lokur in the SC-AOR Matter, and a few earlier cases of the Supreme Court in which judges who had held on a point of law in smaller benches, were subsequently part of a larger bench for determining the same issue, and held differently.¹⁴ These cases have been used as illustrations to demonstrate that there was a "practice of the court" whereby there was no requirement for recusal for a judge if he had delivered an earlier judgment on an issue, and later was part of a larger bench that is considering determination of the same issue. There are however two crucial differences between the facts of the Indore Development Authority matter, and all other instances that were relied upon:

(a) In none of the earlier instances had the same judge reaffirmed his view three times. In the present case, Justice Arun Mishra has already clearly expressed his view on s.24 RFCTRA in not one, but three orders namely Indore Development Authority Case Round 1, Indore Development Authority Case Round 2 and State of Haryana v. Maharana Pratap Charitable Trust; and

(b) Moreover, in none of the cited cases had the judge held another judgement of an equivalent bench of the Supreme Court to be per incuriam.

It is also pertinent to note that the judgement of Justice Chelameshwar in the SC-AOR Matter, which was referred to in the Indore Development Recusal matter, had clearly relied upon the "real danger" test of R. v. Gough from which the following was cited:

The real danger test of R. v. Gough that has been relied in in the SC-AOR matter does not appear to leave the issue of recusal to be that of concerned judge alone and requires the court to ascertain whether based on the facts, there is a real danger of bias on the part of the relevant member "in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

The specific aspect of the SC-AOR recusal matter that the Indore Development Recusal Matter, has relied on is that the "...decision to recuse is that of the Judge concerned, and unjustified pressure should never be allowed." It is worth noting that this was actually one of the points in Justice Lokur's Judgement in the SC-AOR Recusal Matter and on which there was a disagreement between Justice Lokur and Justice Kurian Joseph in the same case.

Thus, the Order dated 23.10.2019 of Justice Arun Mishra, although approving and quoting the principles and tests for recusal that were laid down in Justice Chelameshwar's Majority Judgement in the SC-AOR Recusal matter, does not apply them to the particular facts and instead applies the one point from Justice Lokur's Judgement where there was a disagreement between Justice Lokur and Justice Kurian Joseph on the issue of whether a judge is required to give reasons if he decides to recuse.

There, therefore, appears to be a continuing grey area on the issue of recusals of judges. This is a matter of crucial importance, the resolution of which is necessary since this issue could arise in different instances. To ensure absolute clarity, the appropriate course of action appears to be for the Hon'ble Chief Justice of India to refer the matter a larger bench, or in the alternate, constitute a committee for framing clear rules in this regard.

Footnotes