Day 2 Arguments

15 October 2019

Today, a newly constituted Constitution Bench (‘CB/Bench’) comprising Justices Arun Mishra, Indira Banerjee, M.R.Shah, Vineet Saran and S Ravindra Bhat began hearing oral arguments in the matter. The first day of arguments primarily saw Sr. Adv. Shyam Divan objecting to the presence of Justice Arun Mishra on the Bench. As may be recalled, the reference to CB was necessitated by the conflicting views of two division benches on Section 24(2) of the 2013 Land Acquisition Act, one of which was presided over by Justice Mishra.

Ground for objection

Sr. Adv. Divan’s objection was based on the principle that ‘not only must justice be done, it must also be seen to be done’. As per him, although the CB was not sitting in appeal over Indore Development Authority (judgment of the bench presided by Justice Mishra), the correctness of the said decision too was under scrutiny, lending the proceedings the colour of an appeal.

He submitted that Justice Mishra had, in Indore Development Authority, delivered an elaborate judgment answering most of the issues before the CB. This would give a reasonable person the impression that Justice Mishra was predisposed to the questions placed before the CB. Thus, a reasonable apprehension of bias had been raised even before the beginning of the arguments before the CB.

In order to substantiate this argument, Sr. Adv. Divan placed reliance on the following judgments: Supreme Courts Advocates-on-Record Association v. Union of India (more popularly known as the NJAC judgment), State of West Bengal v. Shivananda Pathak, State of Punjab v. Davinderpal Singh,  as well as the following principle: Principle 2.5 of the Bangalore Principles of Judicial Conduct.

Interventions from the Bench

The Bench made multiple interventions throughout the day’s hearing. It noted that the bias being alleged by Sr. Adv. Divan did not fall under any of the traditionally recognized categories – pecuniary or personal bias. Instead, it may be classified as ‘intellectual bias’, a hitherto unrecognized category. The Bench also made references to past instances where judges have been part of larger benches set up to re-examine their previous judgments. More importantly, the Bench also pointed to the possibility of judges changing their views in subsequent cases, if adequately persuaded. Specifically, it pointed to the Kesavananda Bharati judgment where Justices Sikri and Shelat reached an opposite conclusion to what they had arrived at earlier in Golaknath.

Another set of questions were regarding the circumstances in which a judge may be seen as partial. Sr. Adv. Divan answered them by referring to the principle of reasonable apprehension of bias (discussed above).

Arguments will resume tomorrow. Sr. Adv. Divan is expected to finish his submissions on the issue of recusal, after which Solicitor General Tushar Mehta will respond to them.

(Court reporting by Siddhartha Iyer and Mansi Sood)