Judicial recusal

There is a raging controversy over whether Justice Arun Mishra was right or wrong in refusing to recuse himself from the Constitution Bench formed to interpret Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 after having earlier decided the matter in a particular way.

Two decades ago, this issue of recusal would have been decided without such a hue and cry and he would have easily recused himself on the principle that “justice should not only be done but also seen to be done”. But today, we have a different situation. It is not a question of one judge but the institution itself which matters. People come to court hoping to get a fair hearing and if Justice Mishra’s presence is not going to secure them a fair hearing, then he should gracefully withdraw. The Supreme Court is also functioning in controversial times. In this context, if Justice Mishra had recused himself, it would have been more reassuring to the judicial institution. It is pertinent here to cite Fali Nariman in his book, Before Memory Fades: An Autobiography. The question of a challenge to the 17th Amendment was to come up before then Chief Justice of India, Gajendragadkar whose views on the issue were only too known. When objection was taken to his hearing the matter, Justice Gajendragadkar said he would hear the connected matter. To this, the then Attorney General, Mr. C.K. Daphtary, stood up and said that in his opinion, the CJI should not hear both matters. The Bench was reconstituted the next day, with Justice Subba Rao presiding. In objecting to Justice Mishra’s hearing the matter, it is not a question of impeaching his integrity but only his impartiality.

N.G.R. Prasad,

K.K. Ram Siddhartha,




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Printable version | May 31, 2020 2:14:56 PM | https://www.thehindu.com/opinion/letters/judicial-recusal/article29790766.ece

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