On the apex court’s moral authority- The New Indian Express

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We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own,” said Benjamin Cardozo, the former American Supreme Court judge. Any adjudicative process could invariably involve an inescapable element of subjectivity.  Still, conceptually, an impartial and unbiased court is a constitutional promise and as such a citizen’s right. So the point is to mitigate not only bias but also the real likelihood of bias in the decision-making process. This is a well accepted legal principle.

On October 23, a Constitution Bench of the Supreme Court rejected the plea for the recusal of Justice Arun Mishra from the Bench considering a provision in a land acquisition statute. Curiously enough, the request for the recusal of Justice Mishra was rejected by Justice Mishra himself, who headed the Constitution Bench and wrote the main judgment. Other judges on the Bench concurred with Justice Mishra by way of a separate opinion.

Let us see the matter in issue. A three-judge Bench delivered a judgment in 2014 on Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It interpreted the provision so as to benefit the land owners who suffered acquisition, to a considerable extent. It extended the benefit of the new Act to the land owners in certain specified contingencies, even though the acquisition was under the old colonial Act of 1894.

The verdict also enured to the benefit of many. In 2018, quite strangely, after a reference, another three-judge Bench led by Justice Mishra, with one judge dissenting, not only doubted the correctness of the 2014 judgment, but also overruled it. This exercise was clearly wrong. It was a glaring instance of judicial indiscipline. A co-ordinate Bench could not have overruled the law laid down by a Bench of similar strength. Another Bench, that consisted of the judges who delivered the 2014 verdict, noticed this inappropriateness and even passed an order putting on hold the cases involving the same legal question.

The issue had to be thus referred to the Constitution Bench. It was headed by Justice Mishra. A demand for his recusal followed. The objectors apprehended judicial obstinacy on the part of Justice Mishra since the Bench led by him had overruled the verdict by a co-equal Bench. They relied on a verdict in Shivananda Pathak (1998) that explained the mischiefs of judicial obstinacy. 
Rejecting the objections, Justice Mishra wrote: “Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse.” The first proposition is indisputable; the second one, however, is problematic. 

The issue of recusal cannot be discussed in isolation. Nor can it be seen in the abstract. It needs a contextual examination. Justice Mishra’s judgment relies on instances where the doubting judges in the earlier Benches were part of subsequent larger Benches deciding the correctness of conflicting views. Those instances were however, clearly dissimilar. No case cited by Justice Mishra in the order involved a case of an impermissible annulment of a judgment by a co-ordinate Bench. There are no precedents on facts and no judgment can ever be read like a statute.

Each case needs a decision on its own facts and circumstances. The present imbroglio, in that sense, is unique and unprecedented; it needed an innovative solution on its own which was quite simple and possible. The Chief Justice, who is the master of the roster, could have constituted the Bench by annihilating any apprehension by looking into the episodes that led to the present perplexity. Given that there are 34 judges in the top court, a legal issue impacting thousands of people with an unprecedented chronology could have been resolved with a better sense of judicial statesmanship. The episode puts up a strong case for judicious internal management for the court. The issue is not just legal; it is also administrative. 

Prof. Sarah Cravens indicates that a system should thrive not for appearance of justice but actual justice itself, in the process of adjudication. In an ideal situation, even a judge who is predisposed on a legal proposition could be persuaded to change his views. But situations are not always ideal. Judges do not always function like Gods. Cognitive psychology talks about unconscious bias and the judges too could be vulnerable to it. The “duty to sit doctrine”, evolved in the US, has its formidable critics. The doctrine holds that sitting should be the rule and recusal, the exception. To minimise the demand for recusal and thereby to uphold the majesty of the institution, a strategy to get the ideal persons on the Bench is an imperative. Almost every problem connected with Indian judiciary has an invisible but real nexus with its outdated method of judicial selection, based on considerations which still remain unknown to the people at large.

It may not be desirable to enact a parliamentary law to deal with the situation, for it would lead to the breach of conventionally accepted principles on separation of powers. As indicated by legal scholar James Sample, “The teachable moments on disqualification are in the Court’s court”.
Former American Supreme Court judge Robert Jackson once said: “We are not final because we are infallible, but we are infallible only because we are final.” The order declining recusal is final, but it sets a bad precedent. It has legal force, but no moral authority. 

Kaleeswaram Raj

A lawyer in the Supreme Court of India

Email: kaleeswaramraj@gmail.com

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