Enforcing justice, not exacting retribution

Justice J.S. Khehar’s decision to recuse himself from hearing the Sahara case is both timely and correct

Judges speak only through their judgments. In the Supreme Court’s judgment in the Subrata Roy case, delivered on May 6, >Justice K.S. Khehar spoke for himself and Justice K.S. Radhakrishnan (since retired) and ruled that the Court would not be deterred from doing its duty by allegations of bias. It would not succumb to mind games played by litigants and their eminent counsel. The Court ruled that “not hearing the matter would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will.” The thundering 207-page judgment repelled every argument against the bench hearing the writ petitions which challenged Mr. Roy’s detention in the ongoing contempt proceedings. It rejected the writ petitions as not maintainable and also ruled against Sahara’s claims of having complied with its earlier orders.

Questions to ask It is understood that immediately thereafter, on the same day, Justice Khehar wrote to the Chief Justice of India recusing himself from hearing all Supreme Court cases involving the Sahara group. With Justice Radhakrishnan having retired, this recusal effectively means that an entirely new bench will now be charged with all issues arising out of enforcement of the Supreme Court’s 2010 judgment requiring >Sahara Group to pay over 20,000 crore to Securities and Exchange Board of India (SEBI) . The question to ask is: why now and why not earlier? Secondly, Justice Radhakrishnan went on record to say that in this matter, “[the] pressure, tension and strain which I have undergone is unimaginable.” Is Justice Khehar’s recusal because of the pressure or is it caused by any other factors? These and other questions may legitimately be asked by the public but cannot be answered by the judiciary, which is bound by its own code of silence.

One can only look at past practice and precedent to attempt an answer to the questions and decide whether this is an appropriate decision at this point of time. The fundamental rule is that no man should be a judge in his own cause. In the United States, a federal judge is required to recuse by a rule of the Judicial Code that he “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The rule is that a judge’s expression of an opinion about the merits of a case, or his familiarity with the facts or the parties, must have originated in a source outside the case itself. The “extrajudicial source rule” was recognised as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in

Liteky v. United States . Judges have, from time to time, recused themselves

sua sponte (on their own motion) but have also on occasion declined to do so. In 2004, Justice Scalia famously wrote a 27-page judgment in

Cheney v. United States District Court, 541 U.S. 913 (2004), refusing to recuse himself from a case, involving his duck hunting partner, Vice President Dick Cheney. The norm in England, laid down in

R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256 is that, “Not only must Justice be done; it must also be seen to be done.” This rule was famously applied in 1998 to Lord Hoffman, whose earlier House of Lords judgment in the Pinochet case was set aside. This was done on a possible apprehension of bias because of Lord Hoffman and his wife’s involvement with Amnesty international which had in the past campaigned against the Pinochet regime for violations of human rights. In an interview to the

Daily Telegraph , Lord Hoffman said: “The fact is I’m not biased. I am a lawyer. I do things as a judge. The fact that my wife works as a secretary for Amnesty International is, as far as I am concerned, neither here nor there.” However, his peers in the House of Lords disagreed. They held that “the matter at issue…is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.”

Timely decision Judged against these standards, there is much to commend in Justice Khehar’s recusal. He judged when he was required to, refusing to recuse himself when the request to recuse smacked of bench hunting. After having delivered the necessary verdict, he has shielded the Court from any possible future allegation of continuing animus or bias. No matter how correct the cause, judges of the Supreme Court of India cannot be seen as being driven by one. The judgment of a bench, so long as it stands, is the judgment of the whole court. In the interest of institutional integrity, the new judges will no doubt be as zealous about the necessity of the Supreme Court’s judgments being enforced. There is a thin line between enforcing justice and exacting retribution, which has been scrupulously observed. Justice Khehar’s recusal is a timely and correct decision to take. It will, in the future, withstand the scrutiny of legal historians.

(Sanjay Hegde is a Supreme Court lawyer.)