Why I would not recuse

For one who had felt proud and sad, alternately or simultaneously, on reading the series of orders of Justice Anand Venkatesh picking up suo motu criminal revision cases against Tamil Nadu Ministers for amassing disproportionate assets, the urge and inclination to record one’s thoughts on the subsequent developments is compulsive.

One was deeply moved and touched to see the Directorate of Vigilance & Anti-Corruption (DVAC), a State agency, seeking recusal of the learned judge, from hearing the case against Minister Ponmudi. Has it ever happened before? One’s memory fails, because it is unique, new and novel. Did DVAC ever think that this very act may be a telling revelation as to where its loyalties lie? Justice Anand Venkatesh’s allusion to a chameleon seems so mild, in hindsight. That provoked this piece.

On September 7, 2023, Senior Advocate Sidharth Luthra asked Justice Venkatesh to recuse himself from hearing the suo motu revision petition. Multiple grounds were urged. That the judge had taken suo motu cognizance of the matter even before the expiry of the period within which the DVAC could file an appeal challenging the acquittal. And that the judge had also strongly criticized the administrative order of the High Court, which transferred the case from the district judge at Villupuram to the district judge at Vellore et al.

One recuses as a judge of the constitutional court only for ‘personal’ reasons. If there is any sort of ‘interest’ for the court, in the cause or the parties before it, recusal is resorted to. And it is always a conscience call, by volition and never ‘on demand’. It is shocking that a State agency is openly accusing the judge of nothing less than ‘bias and/or prejudice’.

Where are we headed?

Institutional integrity, and not the judge’s integrity as an individual, is at stake. One remembers the late Justice M Srinivasan telling a counsel sitting in the magnificent Court Hall 2 of the Madras High Court,

“It has become fashionable for counsel to pursue the cause of their clients by seeking transfer of the case from one to another court, if they perceived ‘difficulty’ in facing the concerned court. And then when we refuse the relief, to suggest - now that we have alleged and accused the court of this and that, how can we expect him or her to be anything but antagonistic? The strategy deserves telling, only to be rejected as a gross insult to the integrity of the institution."

One hopes and trusts that the DVAC does not pursue this line.

The refrain is that the learned judge ‘jumped the gun’ in exercising his (absent) suo motu powers of revision even before DVAC could decide on a challenge. This may be a ground in the Ponmudo case. What of the others?The DVAC has showed where its allegiance was or is. Most importantly, all that the DVAC had to do was to be stung to the quick and emergently move their challenge and get it tagged with the suo motu revision.

Even now, it is not too late.

The learned judge is vested with the responsibility to handle this portfolio of MPs/MLAs cases exclusively, and it is as an apex court legacy and prompt. Where, pray, then is the ground to question the jurisdiction to reopen the cause? Justice Anand Venkatesh had to, if he was true to his oath to the Constitution. And that being impugned by a State agency vested with the right to ‘fight corruption,’ takes one’s breath away.

As for the ‘substantive ground’ that the learned judge having ‘already made up his mind’, he may have to recuse himself for ‘justice to be seen to be done’, it is hilarious. More than any other entity, DVAC, with its litigative experience, must be attributed with awareness or at least legal advice of good order. The learned judge was ‘opening a can of worms’ as he has now expressed himself. And the series of egregious orders from courts below cannot be more dramatic.

Justice Venkatesh could/should not have simply taken a cursory glance and ordered notice to hear why the closed causes could not be reopened. The occasion and peculiar circumstances demanded a ‘speaking order’.

He had to record his reasons. And justify the notice. That, dear DVAC, is only prima facie view and not determinative of his final orders.

The respondents were afforded opportunity to appear and legitimately challenge the prima facie conclusions. It happens all the time. Have we not heard judges from the Bench posing tricky questions leaning to one side and then deciding wholly differently? DVAC’s desperate slip is showing!

Here is my personal note.

I would not have recused myself. Surely not. In fact, I may have rejected the request then and there, and not let it linger for any time, as even a remote possibility. I would not have recused myself even in disgust at the ill-directed barbs.

My disgust may have manifested in my response that a State agency seemingly devoted to upholding probity in public life, was proving to be unworthy of its status.

There has not been just one order of this genre. It has now turned into an assembly line avalanche, indicative of a deeper rot. One is reminded of the refusal of Supreme Court Justice JS Khehar, as he then was, to recuse himself from hearing the challenge to the National Judicial Appointments Commision, on the premise that he was a member of the Collegium. Refusal to recuse was unanimous by the Constitution Bench. It said that a judge may recuse on his own. But recusal at the asking of a litigating party is rarely, if ever, acceded to. That would give the impression that the judge has been scared out of the case.

Schemers and manipulators cannot be allowed to have the last say by subverting the avowed institutional purpose and the sublime edifice of the judiciary. After all, the judiciary is the citadel of last or lost hope of 'we the people'. Between resignation and hope stands the institution, at the crossroads.

As for the submission that the administrative side of the High Court was condemned without a hearing, is it new for the Registry to move the court for clarification, if need be. They have the best brains behind them and even now, nothing prevents them from ‘coming clean’ and presenting all facts openly and transparently, exposing sunlight as strong disinfectant. And DVAC batting for them is troublesome, to say the least.

In an era of ubiquitous corruption, eating into the vitals of the nation, the voiceless majority may succumb to resignation for their platitudinal survival. Nurturing hope enlivens the spirit and the soul of the society. We need worthy occupants like this judge, to offer at least a sliver of hope to protect  the purity of administration of justice and save the institutional integrity from the powerful depredations at play, to undermine its foundational purpose.

Justice V Parthiban is a former judge of the Madras High Court.