Posterity will not forgive me for setting a bad precedent: Justice Arun Mishra in recusal order [Read Judgment]

Posterity will not forgive me for setting a bad precedent: Justice Arun Mishra in recusal order [Read Judgment]

Aditya AK

As reported yesterday, Justice Arun Mishra of the Supreme Court refused to recuse from hearing the batch of petitions relating to the Land Acquisition Act.

According to the Judgment, Justice Arun Mishra decided not to recuse in the “interest of the judiciary and the system”. The judgment states,

“Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse. The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of justice or discharge of duty as a Judge and judicial decision-making.”

Justice Mishra goes on to state that it would be a dereliction of duty and injustice to the system if he were to recuse from the case. Stating that recusal cannot be influenced by “outside forces”, he further adds,

“…if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench/es in the future. I have taken an informed decision after considering the nitty-gritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.” 

The primary question before the Bench was whether a judge who has expressed an opinion in a smaller Bench and the case has been referred to a larger Bench, because of the conflict of the opinion or otherwise, can hear the matter in a larger bench. 

Previous instances

The Bench delved into previous instances where members of smaller benches were allowed to sit on larger benches in the same case. Reference was made to the case of Bengal Immunity Co. Ltd. v. State of Bihar (1955), wherein then Acting Chief Justice of India SR Das had the matter placed before a larger Bench of seven Judges, including Justices Vivian Bose and PN Bhagwati, who had participated in the earlier decision. It is noted that Justice Bhagwati had reversed his former view, and held that earlier decision was erroneous. 

A number of similar instances were also highlighted, including those in the cases of M/s. Ujagar Prints and Ors. (II) v. Union of India & Ors. (1989), Gyan Devi Anand v. Jeevan Kumar & Ors. (1985), Hyderabad Industries Limited and Anr. v. Union of India & Ors. (1995), and M/s. Cloth Traders (P) Ltd. v. Additional C.I.T., Gujarat­I, (1979).

Reference was also made to the order passed in the NJAC case, in which Justice JS Khehar’s recusal was sought. It was noted in that case that merely having a legal opinion has no connection with impartiality. 

After going through the precedents, Justice Arun Mishra noted with regard to the present case,

“There may not be even one Judge in this Court who has not taken a view one way or the other concerning Section 24 of the Act of 2013, either in this Court or in the High Court. If the submission is accepted, no Judge will have the power to decide such a matter on the judicial side. We have to deal with the cases every day in which similar or somewhat different questions are involved concerning the same provision. For having taken a view once, if recusal is to be made, it would be very difficult to get a Judge to hear and decide a question of law…

…A judgment is not a halting­ place, it is stepping stone. It is not like a holy book which cannot be amended or corrected. It may also work to the advantage of all concerned if a Judge having decided the matter either way is also a member of the larger bench. A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench.”

Consistent practice in High Courts

Justice Mishra adds that it is a common practice in high courts to include the same judge/judges in larger Benches. For reference, he cites Rule 8 of the Delhi High Court Rules.

“8. Judge or Judges who refer a case shall ordinarily sit on the bench which considers the reference – The Judges or a Bench by whom any question or case is referred shall ordinarily be members of the Division Bench or Full Bench, as the case may be appointed to consider such question or case.” 

Master of Roster

Justice Mishra also refers to the Chief Justice’s power as master of the roster, stating that the same exists so the litigants do not get to choose who hears their case.

“The roster making power is bestowed on the Chief Justice of India so that litigants are not able to choose the Judges before whom they have to argue a matter, and he is a constitutional functionary who has been enjoined with this task at the highest pedestal to exercise the power of roster making. He is the repository of faith. Once he 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 powers of the Chief Justice and that would tantamount to interference with the judicial system…”

Based on the above factors, among others, Justice Mishra ultimately held,

“…a judge rendering a judgment on a question of law would not be a bar to her or his participation if in a larger Bench if that view is referred for re­ consideration. The previous judgment cannot constitute bias, or a pre­disposition ­ nor can it seem to be such, so as to raise a reasonable apprehension of bias…

…Accepting the plea of recusal would sound a death knell to the independent system of justice delivery where litigants would dictate participation of judges of their liking in particular cases or causes…”

Other judges concur

The other judges on the Bench – Justices Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat – all concurred with Justice Mishra’s decision not to recuse. The judgment passed by them states,

“For those and other reasons mentioned in the order of Mishra, J, we concur with his reasoning and conclusions that no legal principle or norm bars his participation in the present Bench which is to hear the reference; the precedents cited and the practice of the court, point to the contrary, i.e. that the judge who decided a previous cause, finally, can – and very often has- participated in the later, larger bench to which such previous decision is referred for reconsideration.”

With these observations, the Constitution Bench went on to frame the following questions for determination of the issue:

1. What is the meaning of the expression ‘paid’/‘tender’ in Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (‘Act of 2013’) and section 31 of the Land Acquisition Act, 1894 (‘Act of 1894’)? Whether non-deposit of compensation in court under section 31(2) of the Act of 1894 results into a lapse of acquisition under section 24(2) of the Act of 2013. What are the consequences of non- deposit in Court especially when compensation has been tendered and refused under section 31(1) of the Act of 1894 and section 24(2) of the Act of 2013? Whether such persons after refusal can take advantage of their wrong/conduct? 

2. Whether the word ‘or’ should be read as conjunctive or disjunctive in Section 24(2) of the Act of 2013?

3. What is the true effect of the proviso, does it form part of sub-Section (2) or main Section 24 of the Act of 2013? 

4. What is mode of taking possession under the Land Acquisition Act and true meaning of expression “the physical possession of the land has not been taken” occurring in Section 24(2) of the Act of 2013? 5. Whether the period covered by an interim order of a Court concerning land acquisition proceedings ought to be excluded for the purpose of applicability of Section 24(2) of the Act of 2013 ? 6. Whether Section 24 of the Act of 2013 revives barred and stale claims? 

Moreover, the issue surrounding the declaration of the Bench in Indore Development Authority that the decision in Pune Municipal Corporation was per incuriam, will also be considered by the Constitution Bench.

The matter has been listed for November 6.

The recusal of Justice Arun Mishra was sought by certain parties to the litigation, including a farmers’ association, on the grounds of “bias of predisposition” with respect to his judgment in the Indore Development Authority case. The core issue in the batch of petitions relates to the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act, 2013).

Justice Mishra was part of the three-Judge Bench that had already delivered a judgment on the issue under consideration by the Constitution Bench. It was on account of contrarian opinions found in judgments by Benches of equal strength that the question relating to Section 24 was referred to a Constitution Bench.

Since the consideration of the issue by the Constitution Bench is in “corrective jurisdiction” as Senior Counsel Shyam Divan submitted, there arose an apprehension pertaining to the presence of Justice Mishra on the Bench.

During the hearing Justice Mishra had hinted that he would not recuse from the case, as the alternative would  amount to “succumbing to forces” who are trying to “tame the judiciary”.

Read the Judgment:

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