Supreme Court judge Justice Arun Mishra on Wednesday said “sponsored” articles and critical social media posts had steeled his resolve to not buckle under and recuse himself as lead judge of a Constitution Bench reviewing his own past judgment.
For a second consecutive day, Justice Mishra stayed his ground amid arguments raised by petitioners as to why he ought to recuse himself from the Constitution Bench set up to examine the contentious issue regarding the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Constitution Bench is reviewing a majority judgment given by Justice Mishra on February 8, 2018, countering a 2014 judgment of the apex court. Petitioners said Justice Mishra, having given a judgment on the issue, may be predisposed to decide in favour of his own earlier view as being correct.
But Solicitor General Tushar Mehta urged the judge to not recuse himself in the interest of the institution. Mr. Mehta termed the articles about the choice of Justice Mishra as the lead judge as articles meant to influence public opinion.
The top government law officer said such articles were examples of people resorting to an “intellectually surreptitious method to influence the judges”.
“I tell you all of them [articles, social media posts] are sponsored,” Justice Mishra asserted. “There is a certain lobby behind them,” he added.
“We are now seeing this trend of ‘hearing-eve’ articles before important hearings,” Mr. Mehta asserted, voicing his wholehearted agreement with the judge’s observation.
Justice Mishra said “I would have recused had it not been for these articles sponsored by a certain lobby against the court, against judges, against the Chief Justice of India. They are trying to tame the institution”.
The judge said he had decided to stay on the Bench to thwart such attempts against the judiciary.
“I would have been the last person to hear this. I am hearing this only for you people and for institution. I would not have heard, but the attack on the institution has compelled me to stay on the Bench,” Justice Mishra addressed Mr. Mehta.
A lawyer for one of the petitioners then rose to ask both Mr. Mehta and Justice Mishra to point out that several lawyers had written articles on the issue. The lawyer urged the judge and the government law officer to disclose whom they have in mind and the “Bar would stand behind you”.
Mr. Mehta read several verdicts and texts to convince the Bench that recusal was a “soft and convenient option” and even amounted to defying the oath taken by a judge.
The Bench finally reserved the question of recusal of Justice Mishra for orders by October 23.
Earlier in the day, senior advocate Shyam Divan, for the parties who sought Justice Mishra’s recusal, argued “the test is not bias. The test is a litigant should not reasonably apprehend bias. Justice must be seen to be done”.
He quoted precedents to argue that it is the duty of judges to recuse themselves from a case and not leave it to the parties to trigger the request.
“Your Lordship’s [Justice Mishra’s] judgment in Indore is going to be analysed and five questions of law have been framed. Your sitting on the Bench will constrain parties, counsel and constrain our ability to present the case... This is certainly crossing the rubicon,” Mr. Divan submitted.
As Mr. Divan concluded, Justice Mishra said he had a question for him. “You have argued fearlessly [on recusal]. We respect you. Now what fear do you have to address us on merits? You were belligerent. Good! Why do you fear to argue on merits? What is the genesis of this fear? You think over it.”
“Very grateful. I will think over it,” Mr. Divan responded.