[The Opinionated Lawyer] The Alchemist Judge(s)

Justice Aharon Barak, former President of the Supreme Court of Israel, in his seminal book, “The Judge in a Democracy” writes - “An essential condition for realising the judicial role is public confidence in the judge. This means confidence in judicial independence, fairness, and impartiality. It means public confidence in the ethical standards of the judge.” Barak elaborates that “Public confidence does not mean following popular trends or public opinion polls. Public confidence does not mean accountability to the public in the way that the executive and the legislature are accountable. Public confidence does not mean pleasing the public. On the contrary, public confidence means ruling according to the law and according to the judge’s conscience, whatever the attitude of the public may be.”

Seen from the above context and even otherwise, Justice K.V. Viswanathan’s action of recusing from a matter after having heard and reserved orders on it, even if without precedent, is a welcome measure and one that will go a long way in building public confidence in our judiciary. It is also a reflection of the Judge’s strong moral compass, conscience and beliefs, and our judiciary’s ability to course correct.

To share some background, a Bench of Justices J.B. Pardiwala and Viswanathan heard arguments in a commercial insolvency matter and reserved the case on 17^th March for judgment to be subsequently delivered. Not too many days after, on 1^st April, the Bench reconvened and recalled its earlier order when it came to the attention of the Bench that Justice Viswanathan had previously appeared as counsel in the matter for the Appellant, one Alchemist Asset Reconstruction Company Private Limited. Ask any practitioner and they will tell you, there is nothing unusual about the recusal order once the discovery of a prior connection came to the notice of the Bench. Even the wording of the order is very matter of fact and one shouldn’t read too much into it. And while it may be unprecedented, it definitely doesn’t merit the attention that some are giving it.

Yes, recusals typically happen before hearings begin. These are for a variety of reasons ranging from: the parties involved – the judges may know one or both of them or may have appeared for them as a lawyer. Sometimes a judge may even recuse from hearing a matter of their alma mater or of a school where there ward is studying or a matter concerning a club of which they are a member. Other grounds for recusal typically would be the lawyer on the brief could be related to a judge or have worked with a member of the bench, due to a known societal or ideological connection of the judge with the organisation or issue involved and sometimes just as a matter of propriety to remove any doubts of an inherent bias or lack of objectivity.

As a long-time practitioner one can say without so much as a flinch that even though precious judicial time, which will never come back, may have been in vain, yet, members of the Bar would take that over being part of a case where an error of this kind takes place. Juxtapose the noise being made now with the alarm bells that would have gone off had a judge’s prior representation of a party come to light post pronouncement of judgment. One cannot also lose sight of the legal proposition laid down in the Rupa Ashok Hurra case that, failure to disclose any connection with the part(ies) by a Judge renders the judgment unsustainable under a Curative Petition. Therefore, the recusal is not only a function of judicial propriety but also what the law mandates.

Justice Viswanathan was the leader of the Supreme Court Bar with an almost unmatched practice and an enviable daily cause-list. With an illustrious career like his, it is tough to keep tabs on all the cases that would have his imprint. Regrettably, there is no system by which this error could have been checked. Equally, this is a situation that is only likely to arise in the case of direct appointees from the Supreme Court Bar to the Bench. As a matter of convention and regular practice, it is incumbent on the counsels to be alert and point out to the bench any members’ prior involvement. That clearly got missed in the present case but got checked before any real harm was done. Going forward, filing lawyers should consider giving a declaration that no member of the bench had any prior involvement in the matter being heard. Surely, technology can be of big use in this situation, and a system can be devised that such errors don’t get repeated.

Back to Justice Viswanathan’s recusal and it being without precedent, one needs to note that “Justice is based on values and values themselves are very difficult to define. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.” These famous words of the inimitable Lord Denning are as relevant today than they were in 1954 when he delivered his famous dissent in a child custody case.

It wasn’t as if Justice Viswanathan, or the Bench, by recusing post-reserving judgment were trying to break ground or create precedent. They were only acting on the basis of their conviction and, in doing so, did something that has, so far, never been done. Yet, the Bench has now paved the path for others to follow, if and when confronted with similar circumstances in the future.

An alchemist is one who turns base metals into gold. It is one who transforms negative situations into positive outcomes or changes oneself for the better. Coincidentally, the ‘Alchemist Case’ gave rise to a situation where the Bench of Justice Viswanathan took the unprecedented step and, in doing so, set the gold standard of judicial propriety. They upheld public confidence, the rule of law, acted with their conscience, and preserved the legitimacy of the judicial making process.

Justice, after all, is a process, not the result. If the process is even slightly flawed, the result, even if correct, will always be subject to questioning. Consequently, while it’s important to be concerned about the law, it’s far more important to be interested in justice. By eliminating even the remotest of doubts about the process, the Bench of Justice Viswanathan ensured that not only was justice done, but also seen to be done!

Satvik Varma is a Senior Advocate based in New Delhi practicing primarily at the High Court of Delhi.