SC: No litigant can choose, who should be on the Bench

The Hon’ble Supreme Court, on 23rd October 2019, in the matter of Indore Development Authority v. Manohar Lal & Ors. Etc. pronounced that a judge rendering a judgment on a question of law would not be a bar to her or his participation if in a larger Bench if that view is referred for re­ consideration.

The Hon’ble Supreme Court observed that:

Rendering a decision on any issue of law and the corrective procedure of it cannot be said to be ground for recusal of a Judge; otherwise, no Judge can hear a review, curative petition, or a reference made to the larger bench. (Para 26)

A judgment is not a halting­ place, it is stepping stone. It is not like a holy book which cannot be amended or corrected. It may also work to the advantage of all concerned if a Judge having decided the matter either way is also a member of the larger bench. A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench. (Para 27)

Where recusal is sought on the ground of legal pre­ disposition , various questions arise for consideration. Firstly, legal pre­disposition is the outcome of a judicial process of interpretation, and the entire judicial system exists for refining the same. There is absolutely nothing wrong in holding a particular view in a previous judgment for or against a view canvassed by a litigant. (Para 28)

No litigant can choose, who should be on the Bench. He cannot say that a Judge who might have decided a case on a particular issue, which may go against his interest subsequently or is part of a larger Bench should not hear his case. (Para 28)

If a party or his Counsel can at length argue on the question of recusal of the Judge before him, he can also successfully question the correctness of a judgment rendered by him. A litigant has got the right to make arguments which suit his cause before a Judge/Judges having taken a contrary view earlier. (Para 28)

If it is open to one litigant to seek recusal and recusal is permitted, then the right has to be given to the opposite party to seek recusal of a Judge who may have decided a case against his interest. In case it is permitted to either side, that would end judicial independence. Then parties will be choosing Benches to their liking. In that case, the Judges holding a view can be termed to be disqualified. In case the submission of recusal is accepted, the Judges having either side view, cannot hear the matter and have to recuse from hearing. In that case to find neutral Judges would be difficult to find and that would be subvert to the very concept of independent judicial system. (Para 28)

If litigants are given the right to seek recusal of a judge on the ground that in a smaller Bench, a view has been taken by the Judge, the correctness of which has to be decided by the larger Bench, which includes the same Judge, then on a parity of reasoning recusal might be sought on the ground of the judge having taken a view one way or the other even in a different case in which similar issues are involved if the judge has decided similar issues earlier, in the same Court or in a different Court. This would open the flood gates of forum shopping. (Para 28)

Recusal upon an imagined apprehension of legal pre­disposition would, in reality amount to acceding to the request that a Judge having a particular view and leanings in favour of the view which suits a particular litigant, should man the Bench. It would not only be allowing Bench hunting but would also be against the judicial discipline and will erode the confidence of the common man for which the judicial system survives. (Para 28)

If request for recusal on the ground of legal pre­disposition in the form of a judgment is acceded to, that would destroy the very edifice of an independent judicial system. (Para 29)

The entire judicial system is based on sound constitutional principles. The roster making power is bestowed on the Chief Justice of India so that litigants are not able to choose the Judges before whom they have to argue a matter, and he is a constitutional functionary who has been enjoined with this task at the highest pedestal to exercise the power of roster making. He is the repository of faith. Once he has exercised his power, it is not for the Judges to choose. As per their oath, they have to discharge their duties without fear and favour and in a dispassionate manner without any ill will, bias towards litigants, or a cause. (Para 30)

If requests for recusal are acceded to for the asking, litigants will be unscrupulously taking over the roster making powers of the Chief Justice and that would tantamount to interference with the judicial system, by the mighty to have a particular Bench by employing several means and putting all kinds of pressures from all angles all around. It is the test of the ability of the judicial system to withstand such onslaught made from every nook and corner. (Para 31)

A judge rendering a judgment on a question of law would not be a bar to her or his participation if in a larger Bench if that view is referred for re­ consideration. The previous judgment cannot constitute bias, or a pre­disposition ­ nor can it seem to be such, so as to raise a reasonable apprehension of bias. Nor can expressions through a judgment (based on the outcome of arguments in an adversarial process) be a “subject matter” bias on the merits of a norm or legal principle, or provisions. (Para 43)

Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse. (Para 44)

Copy of judgment: Judgement_23-Oct-2019

-Adv. Tushar Kaushik 

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