Justice Delivery System: Practice and Procedure – Recusal of judge – Whether a Judge who has expressed an opinion in a smaller Bench and the case has been referred to a larger Bench, because of the conflict of the opinion or otherwise, can hear the matter in a larger bench – Held: 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 – 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 – Rather, it is a consistent practice prevailing in various High Courts as well as of Supreme Court to include the same Judge/Judges in larger Benches. (Arun Mishra, J.)
Justice Delivery System: Practice and Procedure – Recusal of judge prayed for on the ground of legal pre-disposition – Held: There is absolutely nothing wrong in holding a particular view in a previous judgment for or against a view canvassed by a litigant – 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 – Furthermore, 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 – 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 were 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 – Recusal upon an imagined apprehension of legal pre-disposition 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 – If request for recusal on the ground of legal pre-disposition in the form of a judgment is acceded to, that would destroy the very edifice of an independent judicial system – 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 – 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 – Abuse of court – Bench Hunting. (Arun Mishra, J.)
Abuse of court: Bench hunting – Request for recusal of Judge by litigants – Held: 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 – Moreover, recusal in such unjustified circumstances, would become the norm – If recusal is made, it would tantamount to giving room to unscrupulous litigant to have a Judge of their choice who can share the views which are to be canvassed by them – No such right can be given to any person under the said guise – Justice Delivery System. (Arun Mishra, J.) ‘Judicial Recusal’ by Grant Hammond, a former Judge of the Court of Appeal of New Zealand – referred to. Justice Delivery System: Recusal of Judge – Who to decide – Held: Recusal is not to be forced by any litigant to choose a Bench – It is for the Judge whose participation is objected to, to decide recusal application – Further, the embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse – Nothing should come in the way of dispensation of justice or discharge of duty as a Judge and judicial decision-making. (Arun Mishra, J.)
M/s. Ujagar Prints v. Union of India (1986) Suppl. SCC
652 – relied on.
Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & Ors. (2014) 3 SCC 183 : [2014] 1 SCR 783 ; Yogesh Neema & Ors. v. State of Madhya Pradesh (2016) 6 SCC 387; Sree Balaji Nagar
Residential Assn. v. State of Tamil Nadu (2015) 3 SCC
353 : [2014] 7 SCR 799 ; Indore Development Authority vs. Shailendra (Dead) through LRs. & Ors., 2018 SCC Online SC 100 ; State of Bombay v. United Motors India Ltd., [1953] SCR 1069 ; Bengal Immunity Co. Ltd. v. State of Bihar, [1955] 2 SCR 603; M/s. Ujagar Prints and Ors. (II) v. Union of India & Ors.(1989) 3 SCC
488 : [1988] 3 Suppl. SCR 770; Empire Industries Ltd. v. Union of India (1985) 3 SCC 314 : [1985] 1 Suppl. SCR 292; Gyan Devi Anand v. Jeevan Kumar & Ors.(1985) 2 SCC 683 : [1985] 1 Suppl. SCR 1 ; Ganpat Ladha v. Sashikant Vishnu Shinde (1978) 2 SCC 573 : [1978] 3 SCR 198 ; Sajjan Singh v. State of Rajasthan 1965 AIR SC 845 : [1965] SCR 933;
Damadilal v. Parashram (1976) 4 SCC 855 : [1976] Suppl. SCR 645 ; Kesavananda Bharati v. the State of Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; Hyderabad Industries Limited and Anr. v. Union of India & Ors. (1995) 5 SCC 338 : [1995] 2 Suppl. SCR 287; Khandelwal Metal & Engineering Works v. Union of India (1985) 3 SCC 620 : [1985] 1 Suppl. SCR 750; Hyderabad Industries Ltd. & Anr. v. Union of India & Ors. (1999) 5 SCC 15 : [1999] 3 SCR 471 ; M/s. Cloth Traders (P) Ltd. v. Additional C.I.T., Gujarat-I, (1979)
3 SCC 538 : [1979] 3 SCR 984; Distributors (Baroda) Pvt. Ltd. v. Union of India & Ors.,(1986) 1 SCC 43: [1985] 1 Suppl. SCR 778 ; Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of Income Tax,
Bombay North, Ahmedabad [1963] Suppl.1
SCR 871 ; Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North, Ahmedabad [1965] 2 SCR
908 ; Jamal Uddin Ahmad v. Abu Saleh Najmuddin, (2003) 4 SCC 257 ; State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513 : [1998] 1 SCR 811 ; Asok Pande v. Supreme Court of India, (2018) 5 SCC 341 : [2018] 3 SCR 337; Supreme Court Advocates-on-Record
Association & Anr. v. Union of India (recusal matter), (2016) 5 SCC 808 : [2015] SCR 975; Subrata Roy Sahara v. Union of India & Ors. (2014) 8 SCC 470 : [2014] 12 SCR 573 ; R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106: [2009] 11 SCR 1026; Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC
156 ; Bal Kishan Giri v. State of Uttar Pradesh (2014)
7 SCC 280 : [2014] 6 SCR 545 ; All India Institute of Medical Sciences v. Prof. Kaushal K. Verma (2015) 220 DLT 446 – referred to.
John Patrick LITEKY v. United States 510 U.S. 540 (1994) – referred to.
Shri M.C. Setalvad, in his Autobiography “My Life, Law and other things” – referred to.
Justice Delivery System: Recusal of Judge – Practice and procedure – Reference before five judge Bench comprising of Justice Arun Mishra and four other Hon’ble Judges – Application for Recusal of Justice Arun Mishra on ground that as a Judge he had expressed an opinion in a case in a smaller Bench and that case has now been referred to this larger five-Judge Bench – Justice Arun Mishra rejected the application for recusal – Held: (per other four members of the Bench): The Judge who decided a previous cause finally can and very often has participated in the later larger bench to which such previous decision is referred for reconsideration – There is no legal impediment or bar to participation of Justice Arun Mishra to hear reference on the merits in the present Bench – This Bench shall proceed to hear and decide the reference made to it, on its merits.
Supreme Court Advocates-on-Record Association & Anr. v. Union of India (2016) 5 SCC 808: [2015] SCR 975 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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