Plain English Summary of the Recusal Order

On October 23rd 2019, the newly constituted Constitution Bench pronounced its order on the application for recusal of Justice Arun Mishra. The lead opinion was delivered by Justice Arun Mishra himself and the four other judges on the Bench – Justices Indira Banerjee, Vineet Saran, M.R.Shah and S Ravindra Bhat – delivered a joint concurring opinion.

Justice Mishra relied on two grounds for the rejection of the application: (i) past instances where similar appointments have been made, (ii) practical difficulties of recusing when legal predisposition is alleged.

Rest of the Bench deferred to Justice Mishra’s decision on the ground that in an application for recusal, the opinion of the judge whose recusal has been sought should prevail.

A more elaborate account of the grounds are provided below.

Reliance on past practice of the court

Although numerous arguments were raised in the course of the oral arguments for recusal, Justice Mishra framed the issue before him in the following way: whether a judge who has expressed their opinion as part of an earlier smaller bench may sit on a larger bench set up to examine the earlier bench’s decision.

To answer this, he cites the example of the bench inBengal Immunity Co. Ltd. v State of Bihar, which was constituted to examine the correctness of the decision in State of Bombay v United Motors. Justices Bhagwati and Bose who were part of the earlier bench in United Motors were also appointed to the larger bench in Bengal Immunity Co. More importantly, Justice Bhagwati took a complete u-turn in Bengal Immunity Co. and reversed the earlier position he held in United Motors. Justice Mishra goes on to cite a number of similar instances of judges serving in the larger benches set up to examine the correctness of an earlier decision they were part of. In this regard, he also cites examples of how it is routine for judges to reverse their earlier positions when serving in the larger bench. Thus, Justice Mishra notes that it was a “consistent practice of this Court” to have the same judges in a larger bench meant to examine an earlier decision delivered by them.

Thereafter, Justice Mishra refers to the decision in Jamal Uddin Ahmad v Abu Saleh Najmuddinto imply that past practices of the court should also be taken to be the law governing the court. He then draws support from the decision in State of WB v Shivananda Pathak to hold that prejudging a question of law or policy does not disqualify a judge from hearing a case later on.

Thus, he concludes that rendering a decision on an issue of law does not disqualify a judge from taking part in later proceedings meant to correct that decision.

Another plank on which the opinion stands is the impracticality of judges recusing in such circumstances. He observes that almost all judges of the court must have expressed an opinion on Section 24 of the 2013 Land Acquisition Act one way or the other, making it impossible to allot it to someone without a predisposition to the questions of law.

Another practical consideration against recusal is that of forum shopping by litigants, who may continue to seek recusal till they get a bench to their liking. This may also lead to the litigants seeking recusal of even those judges who may not have even been a part of the earlier bench, but on the ground that they have expressed an opinion on the issue in some other case.

Finally, if recusals on the basis of ‘legal pre-disposition’ were to be accepted, it would lead to the destruction of judicial independence.

Justice Mishra also notes that the Bench consists of five judges, who may all have different opinions on the issues at hand – thus, negating any detrimental effect of one judge having a predisposed opinion.

Concurring opinion – Deferring to the wisdom of Justice Mishra

The concurring opinion – delivered jointly by the rest of the Bench – cites two grounds for rejecting the application for recusal. One, quoting the Court’s decision in Supreme Court Advocates on Record Association and Ors. v Union of India, it observed that the question of recusal is one to be determined by the judge whose recusal has been sought and not the bench as a whole. In view of this, Justice Mishra’s opinion cannot be commented upon by the rest of the judges, notes the concurring opinion.

Additionally, they also observe that no legal impediment to his participation was established.