The right to a fair hearing is at the heart of the rule of law. But in India today this notion increasingly appears to be a chimerical dream. The latest affront to the principle comes from an order delivered on October 23 by a five-judge, constitution bench of the Supreme Court of India in Indore Development Authority v. Manohar Lal . Here, in holding that an application seeking the recusal of Justice Arun Mishra, the presiding judge on the bench, was liable to be rejected, the court brushed aside with alarming alacrity the most rudimentary standards of natural justice.
“Posterity,” wrote Justice Mishra in an order which was joined by a terse, concurring statement that each of the other four judges signed, “will not forgive me down the line for setting a bad precedent.” Now, it might well be difficult for us to assess how succeeding generations might look back on this decision. But we scarcely need the hindsight of the future to review the present actions, which tear asunder the basic ideals of fairness and rectitude that ought to undergird any reasonable system of justice.
Facts of the case
In many ways, the facts leading up to the constitution of the five-judge bench speak for themselves. The issues involved in the case spring out of a reading of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR). This law, which replaced the colonial-era Land Acquisition Act of 1894, places a number of checks on the government’s power to expropriate property. Significantly, besides promising a more equitable compensation, the LARR mandates a social and environmental impact assessment before the state acquires any land. It also establishes a structure that ensures the rehabilitation and resettlement of those people whose lives are likely to be most affected by the taking of their properties. The objective is to ensure that the state’s supposedly sovereign power to acquire land is not used in a manner inimical to the people whose lands are taken.
As highlighted by this writer in the article, “United by a common purpose” (Editorial page, The Hindu , March 1, 2018), Section 24(2) is one among many provisions which gives meaning to the LARR’s larger goals. It states that in all cases where an award has been made under the 1894 law five years or more prior to the commencement of the LARR (that is before the year 2009), wherever physical possession has not been taken or where compensation has not been paid, those earlier proceedings will lapse, and the land will vest once again with the original landowner. In January 2014, in interpreting this clause, a three-judge bench of the Supreme Court, in Pune Municipal Corporation v. Harakchand Solanki , adopted a liberal construal. It held that the word “paid” used in Section 24(2) did not envisage cases where the government had merely deposited amounts into its own treasuries. Even if the landowners had refused compensation, the court held, the government ought to have at the least deposited the money into court.
This reading of Section 24(2) was not only correct as a matter of textual interpretation but was also in consonance with the larger goals of the new legislation. Indeed, as Namita Wahi of the Centre for Policy Research had pointed out, over the course of four years the judgment was followed by nearly 250 decisions by the Supreme Court and about a thousand High Court verdicts across the country. Yet, in February last year, a three-judge bench comprising Justices Arun Mishra, A.K. Goel and Mohan M. Shantanagoudar (who wrote a partial dissent), in Indore Development Authority v. Shailendra , held that in cases where a landowner refused compensation, it was sufficient if the state made a payment into the government’s treasury, and that there was no attendant obligation on it to deposit the money into court.
It is also about propriety
To many, this might not appear to be an exceptional conclusion; some might even see this as a plausible interpretation of Section 24(2). But the problem here does not merely concern the enunciation of the law, but speaks rather to something deeper, to the principles of propriety that are integral to the court’s functioning. On that, there are at least two troublesome factors worth bearing in mind. One, that the creation of the three-judge bench which heard the questions raised in Shailendra was itself a product of a reference made by a panel of two judges presided over by Justice Mishra. Two, that the majority’s judgment in Shailendra , which was authored by Justice Mishra, did not merely disagree with the finding in Pune Municipal Corporation but also went on to hold that the earlier ruling was delivered per incuriam , or, in other words, that the verdict was characterised by a lack of proper regard for the law.
The firestorm that ensued out of all of this ultimately resulted in the Chief Justice constituting a five-judge bench, once again at the instance of a reference made by a bench presided over by Justice Mishra. As Gautam Bhatia has written (in a blog), what this meant was that the same judge had been involved in the following: first, in doubting the correctness of Pune Municipal Corporation , when sitting as part of a two-judge panel; and second, in holding the ruling invalid when sitting later as part of a three-judge panel. And now that very judge had been entrusted with the job of presiding over a five-judge bench that was meant to definitively settle the wrangle. This, therefore, was what in Latin is described as res ipsa loquitur , or, literally, the matter speaking for itself.
In his order, Justice Mishra offers four primary reasons justifying his decision not to recuse. First, a recusal, he writes, would give room to an “unscrupulous litigant to have a Judge of their choice”. That recusals should not be used as a means to allow a party to choose its own bench is axiomatic. We certainly do not want our judges to accede to requests for recusal merely because one has been made. But all that the applicants had done here was to highlight that Justice Mishra’s predisposition was so strong that he had not only made his mind up earlier, but that he had chosen to impinge on commonly accepted rules of precedent that required benches of coordinate strength to follow earlier rulings.
Second, Justice Mishra asserts that “affronts, jibes, and consciously planned snubs” ought not to deter the bench from discharging its “onerous responsibility”. To this, one can only say that it ill-behoves the Supreme Court to make ad hominem claims on what really are unnamed groups. Third, Justice Mishra cites a host of cases in which judges who were originally part of a referring bench were later called upon to participate in the larger bench’s hearing. In none of the cases, however, had a judge formed so conclusive an opinion as Justice Mishra had on Section 24(2), and, most certainly, in none of these cases had a judge disregarded the doctrine of stare decisis — the basic legal principle of determining the outcome of a dispute according to precedent — to unsettle an established interpretation of the law.
Finally, Justice Mishra makes an appeal to his own conscience, which, he says, compels him to hear the case. We need not doubt this claim. But the broader concern remains, because the bright-line rules on recusal require an altogether different analysis. They demand that a judge appeals not to his own moral sense but to consider what a reasonable person might make of his decision to hear a case. Or, as Justice Felix Frankfurter of the U.S. Supreme Court had written, in a case later cited by Justice M.N. Venkatachaliah (1987), “When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges recuse themselves.” Eventually, the constitution bench might well deliver a faultless verdict, but to any such ruling this question will stay rooted like a limpet on a rock: is justice seen to be done?
Suhrith Parthasarathy is an advocate practising at the Madras High Court