#RecusalWatch: What the data on SC judges’ recusals in 2017 reveals [Part II]

In this second part and final part of the yearly Recusal Watch, we take a look at some more data regarding recusal of Supreme Court judges in 2017.

When six judges recused from hearing the same case

The hearing of the civil writ petition No.793 of 2015, Suraksha Foundation v Union of India, a PIL, has turned out to be bizarre.

Filed by Sanjay Jain, advocate, on behalf of the NGO, the petitioner had made the following prayer:

“Issue a writ of mandamus or certiorari, any other appropriate writ, order or directions thereby striking down the exemption granted to transport vehicle of M1 category (seating capacity of eight passengers in addition to the driver seat) and all four wheeled lgvs above 1000 kgs, gross vehicle weight, and below 3500 kgs gross vehicle weight in sub-part (iv) of the proviso the mended Rule 118(1) of the Motor Vehicles Rules, 1989, as amended by the Central Motor Vehicles (Sixth Amendment) Rules, 2015, dated  April 15, 2015 and etc.”

Although the case was heard by different Benches since 2015, in 2017 alone, six Judges recused from hearing it on different dates, the reasons for which were not clear. Chief Justice JS Khehar and Justice Sanjay Kishan Kaul recused on February 27. Justice Dipak Misra recused on April 6.  Justice S Abdul Nazeer recused on April 28. Justice Madan B Lokur recused on May 5 while Justice AK Sikri recused on November 6.

Finally, it was listed before the Bench of Justices SA Bobde and Mohan M Shantanagoudar, on November 13. That Bench directed that the matter be listed after the pronouncement of judgment/order in a related matter, Jai Prakash v M/s National Insurance Co. Ltd & Ors, which is being heard by the Bench of Justices Lokur and Deepak Gupta. It is not clear why Justice Lokur recused from hearing Suraksha Foundation, if it is related to another matter, which is already pending before his Bench, and whose outcome is likely to influence that of the former.

When a Judge recuses from cases, after spending several hours hearing it

When a judge makes his intention to not hear a matter, clear, at the very first hearing, it indeed makes a lot of sense, as a lot of judicial time is saved, which would otherwise be wasted, if the same judge decides to do so, after hearing it for a couple of days.

Justice Chelameswar recused from two such cases, which he heard for a couple of days. On May 4, he recused from hearing the case, ND Jayaprakash v Union of India, although a Bench presided by him, had heard it twelve times. The petitioner had sought directions to be issued to the Union Home Ministry including the police to ensure the safety and security of persons inside the court premises during the trial of JNU Students Union leader, Kanhaiya Kumar. Justices Chelameswar and Abhay Manohar Sapre had issued notice to the Centre in early 2016, seeking its response on the issue. Subsequently, a contempt petition also came to be filed against former Delhi Police Chief BS Bassi for failing to comply with the orders of the Supreme Court.

After Justice Chelameswar’s recusal, another Bench of Justices Ranjan Gogoi and Navin Sinha heard the matter on November 14, which found no live issue in the matter, and dismissed both the writ petition and the contempt petition.

Justice Chelameswar recused from another important case, Telengana Judges Association v Union of India, after hearing it twenty times since January 23, 2017.  The matter has now been listed before the Bench of Justices AK Sikri and Ashok Bhushan, to be heard on January 15, 2018. The matter relates to the allocation of Judges between Andhra Pradesh and Telengana.

Justice Lokur’s recusal from hearing the application of the petitioner in Arjun Gopal v Union of India, ten days after the delivery of the judgment on September 12, is equally relevant. The Bench of Justices Lokur and Deepak Gupta had lifted the stay on the sale of the fire crackers in Delhi and in the National Capital Region, imposed by a three-Judge bench. The petitioner’s counsel, thereafter, discovered a document in a Delhi High Court case, decided almost 20 years ago, in which Justice Lokur, who was then an Amicus Curiae in that case before the High Court, (before his elevation as Judge) and the Central Pollution Control Board, had defended the ban on sale of fireworks and crackers, during the Diwali period, in view of the findings that harmful pollutants were used in their manufacture. The petitioner, therefore, sought reconsideration of the September 12 order, bringing to the notice of the bench, the details of the earlier case, dealt by the Delhi High Court twenty years ago.

On September 22, the Lokur-Deepak Gupta JJ. Bench held in their order as follows:

“List the matter before a Bench of which one of us (Madan B Lokur, J.) is not a member in view of Annexure ‘G’ in I.A. No. 96202/2017 which was brought to our notice only after judgment was delivered on 12^th September, 2017.”

By disclosing the reason for his recusal on record, Justice Lokur, avoided any speculation over it. But it did raise the question whether Justice Lokur, being the Amicus Curiae in a related case before the Delhi High Court earlier, could have anticipated that his impartiality could come under a cloud.

The matter was then listed before Justices AK Sikri and Ashok Bhushan, who recalled the September 12 order passed by Justices Lokur and Gupta, thus restoring the stay granted earlier on the sale of fireworks in Delhi and NCR during the Diwali. The Sikri-Bhushan JJ. Bench, however, admonished the petitioner for forcing the Judge to recuse, by bringing an old document to light, belatedly, after the delivery of the judgement.

Read: What the data on SC judges’ recusals in 2017 reveals [Part I] here.