Should Justice Arun Mishra recuse from a five-judge Supreme Court Bench formed to give an authoritative interpretation of a provision in the 2013 land acquisition law? There is quite a compelling case that he must. In the normal course, recusal could be a judge’s individual decision. In the course of the hearing, before orders were reserved on this question, he suggested that the demand for his withdrawal amounted to “bench-hunting” and an attempt to tame the judiciary. However, the case history shows that there could be grounds for apprehension that he has a predisposition towards a particular view that would affect his ability to render an impartial ruling in the current referral. Last year, in an unusual verdict, a Bench headed by Justice Mishra, with one judge dissenting, overruled a 2014 judgment by another three-judge Bench on the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It was unusual because every Bench is bound by the precedent set by another Bench of the same size. And if a Bench differs with the ruling of a coordinate Bench, it ought to refer the matter to a larger one, instead of adjudicating the question itself. Adherence to this doctrine of precedent ensures judicial discipline. In holding that the earlier judgment was per incuriam (an order passed without due regard to law) Justice Mishra departed from this doctrine.
When a similar matter came up before judges who were part of the Bench that had passed the 2014 judgment, it was brought to their notice that their ruling no longer held the field. The Bench, headed by Justice Madan Lokur, ordered that in view of the conflicting judgments, all hearings on land acquisition matters involving Section 24 be postponed until the question whether the matter has to be examined by a larger Bench was decided. It was only thereafter that Justice Mishra referred the matter to the CJI for constituting a larger Bench. In this backdrop, Justice Mishra’s vehement refusal to withdraw from the hearing is disappointing. Far from undermining the judiciary, the demand for his recusal advances the principle that justice must be seen to be done. International standards of judicial impartiality take into account the perception or apprehension of bias, and it need not necessarily be a fact. The argument that a prior decision on a question of law does not disqualify any judge from considering the same question again is normally valid. However, it may not be applicable when the prior decision was made against the reigning precedent. The controversy also brings under focus the power of the CJI as Master of the Roster. In a court of 34 judges, would it not have been better had the case been posted before a Bench in which Justice Mishra was not a member?