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A case against judicial recusal

Despite the controversy, Justice Arun Mishra’s recusal is not in fact mandated by the law on judicial impartiality

October 24, 2019 12:02 am | Updated 01:01 am IST

Over the past week, the Supreme Court of India has found itself increasingly mired in criticism concerning the recusal of Justice Arun Mishra. At the heart of the fuss lies Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. In 2014, three judges of the Court ruled on the construction of this provision in the Pune Municipal Corporation case. In 2018, however, another three-judge Bench of the Court departed from their interpretation, in the Indore Development Authority decision. To resolve the conflict between these two judgments and provide an authoritative understanding of Section 24, a five-judge Bench was constituted last week, led by Justice Mishra. Controversially, however, Justice Mishra also presided over the three-judge Bench in Indore Development Authority , penning an opinion that strongly disagreed with Pune Municipal Corporation , going so far as to call it ‘per incuriam’. In essence, the quarrel is this: having made his opinion on the legal issue abundantly clear in Indore Development Authority , should the judge still be allowed to sit on a bench established to reconsider the very same question?

Issue of bias

Much of the writing that has emerged on this issue weighs in on the side favouring recusal, including an opinion piece published in an earlier edition of this paper. Indeed, the court itself acknowledged that social media posts and newspaper articles seemed to be pressuring the judge to step down. Yet, it is not apparent why such an outcome is mandated by the common law rule on judicial impartiality.

As noted by the Supreme Court in the NJAC judgment, a judge may be required to step down in one of two scenarios: cases of presumed bias, where the judge has a pecuniary interest in the outcome of a case (extended, through the Pinochet judgment to other similar non-pecuniary interests); or in cases of apparent bias, where a reasonable, fair-minded observer would believe there is a real possibility that the judge is biased. It is this latter test of apparent bias which has been invoked in the ongoing proceedings.

Emerging out of the principles of natural justice, the justification for the apparent bias test is fairly straightforward: that ‘justice must not only be done but must be seen to be done’ to instil public confidence in the legal system. Yet, the purpose of this test is not to disqualify judges on the slightest whiff of suspicion; rather, the allegation of bias is only to succeed if it convinces a reasonable, fully-informed fair-minded observer. Inevitably, then, we must ask what such an observer might think of Justice Mishra’s predicament. To this, it is submitted, there can only be one answer.

An informed observer would be expected to understand the functioning of a judicial proceeding, which does not expect its judges to bring an empty mind to a case, but only an open one. Judges are permitted to have pre-existing opinions on legal issues they decide. Indeed, such opinions are often acknowledged as expertise and rewarded through appointment to specialised benches and tribunals. It is only when such opinions acquire a certain severity, such that the judge closes their mind and refuses to be persuaded by reason, that the question of impartiality arises.

In the case of Justice Mishra, this standard has not been met. His opinion in Indore Development Authority does not use uncompromising or injudicious language to presage such a closing of the mind. Even the finding of ‘per incuriam’ was legally necessary to justify the departure from Pune Municipal Corporation . Nor does he have a confirmed history of deciding Section 24 cases in a particular fashion. There is, in fact, no evidence to indicate that Justice Mishra cannot be persuaded to change his mind on the interpretation of Section 24 through fresh arguments in the current proceedings.

Some precedents

Some have argued that, because the current Bench will be indirectly ruling on the rectitude of the Indore Development Authority judgment, Justice Mishra is, in effect, sitting on appeal over his own judgment. While this may sound unintuitive, it is not in fact prohibited under the common law. Indeed, judges have often been permitted to question the validity of their own prior decisions — see, for instance, the decisions in Sengupta v. Holmes and JSC BTA Bank v. Ablyazov . The law recognises that judges can be, and often are, persuaded to change their opinions. Moreover, practically, the current proceedings are not formally an appeal but arise out of an entirely distinct case. As such, the situation is more akin to that of a judge being asked to decide a legal issue they have ruled on in a prior case: a matter that occurs fairly routinely in our legal system.

A final argument warrants consideration: since Justice Mishra’s presence on the Bench has proved to be controversial, would it it be better to err on the side of caution and ask for his recusal? Decidedly not. Such a recusal would set a dangerous precedent for future litigants to cherry-pick their benches and coerce judges they find unfavourable into stepping down. Such a position would severely undermine the administration of justice in the Indian legal system. It is, therefore, imperative that Justice Mishra be allowed to sit.

Vanshaj Ravi Jain is a DPhil candidate and Rhodes Scholar at the University of Oxford

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