Judge’s refusal to recuse wrong

Justice Arun Mishra’s refusal to recuse himself from a five-judge constitution bench of the Supreme Court which is hearing a petition against an earlier judgment in a land acquisition case, given by a bench of which he was a part, is wrong. Unfortunately, the bench has also endorsed his decision. The bench is expected to interpret an important provision of the land acquisition law of 2013, based on which two benches of the court have given contradictory rulings. Last year, a three-judge bench headed by Justice Mishra overruled a 2014 judgment of another three-judge bench on a matter relating to compensation for landowners. When a bench differs with the ruling of a bench of the same strength on the same issue, the matter has to be referred to a larger bench. Instead, Justice Mishra’s bench gave a conflicting ruling, declaring the earlier judgment as having been passed without due regard to the law. When the matter was brought before the earlier bench, it wanted it to be examined by a larger bench. The Chief Justice (CJI) has constituted a bench headed by Justice Mishra, on his own reference, for that.

Some parties to the case have sought Justice Mishra’s recusal because he will now be judging an issue on which he has already issued a ruling. But Justice Mishra has refused to recuse himself and said that the demand for it amounted to bench-hunting. He has said that he will not get influenced by anything, “even by his own judgment’’. He has noted that a judge who is part of a smaller bench which took a decision is not barred from being part of a bench to which a reference is made. But that is not exactly the case here. He has already made his views on the matter known. The case is unique and has no precedent. By heading the constitution bench, he is in effect sitting in judgment over his own earlier judgment.

A judge has the right to decide whether he should recuse himself from a case. But Justice Mishra’s decision is certainly inappropriate. Public perception, especially the perception in the mind of the litigant, is of utmost importance in the judicial process. In this case, the parties have reason to think that Justice Mishra has a predetermined view on the matter before the bench. This need not amount to attribution of bias or questioning his integrity. Justice Mishra and the bench should have taken this into consideration because justice should not only be done but should also be seen to be done. In fact, the CJI should have posted the case to a different bench, considering the background of the case.