Justice not seen to be done

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The Supreme Court has upheld the decision of Justice Arun Mishra not to recuse from a five-judge bench of the top court formed to give an authoritative interpretation of a provision in the 2013 land acquisition law. One of the parties in the case had alleged “intellectual bias” on the part of Justice Mishra and had demanded his recusal. However, Justice Mishra equated this demand with “bench hunting”, and said it went against the basic tenets of judicial procedure. This was also echoed by Solicitor General Tushar Mehta, who asserted that there is a pattern in such demands, where a few days before a major case is heard, things are written on social media or in online magazines raising objections intended to influence the proceedings.
The constitutional bench was set up to resolve the conflict between benches of equal strength in the Supreme Court. In 2014, a three-judge bench of the Supreme Court (Pune Municipal Corporation Case) interpreted Section 24 of the Land Acquisition Act in one way. The Supreme Court’s interpretation was, as is normal, followed by high courts across the country and also by two-judge benches of the Supreme Court itself, for the next four years.

However, in December 2017, a two-judge bench of the Supreme Court took a contrary view and asked for a larger bench to consider the matter. In accordance with convention, the Chief Justice of India constituted a three-judge bench to look into the issue. Within two months of the December 2017 judgment, the three-judge bench (Indore Development Authority case) also took the opposite view on Section 24 from Pune Municipal Corporation case. It declared the Pune Municipal Corporation case verdict per incuriam, that is, in ignorance of the law, and went on to overrule it.

The judicial propriety of the bench in the Indore Development Authority case may also be questioned here. As per the law established by a constitution bench of the Supreme Court in the Central Board for Dawoodi Bohra Community vs State of Maharashtra, a bench cannot overrule the decision of another bench of equal strength. If it disagrees with it, it can refer the case to the CJI to constitute a larger bench for reconsideration. It was also held in this case that a bench not following this law is committing judicial impropriety, which should be avoided. However, the bench in the Indore Development Authority case, consisting of Justice Mishra, passed judgment in ignorance of this law.

Unsurprisingly, this led to immediate chaos in the Supreme Court. The issue was brought to the notice of another three-judge bench of the Supreme Court, headed by Justice Madan Lokur, who passed an order requesting other Supreme Court benches not to dispose off pending land acquisition matters. This situation is tricky as the high courts and the subordinate courts are left to their own wisdom to choose between two conflicting opinions rendered by two benches of same strength. The lower courts, subordinate courts in particular, should be the ones to follow judgments and not decide between two opinions as this would tantamount to constitutional interpretation, which they are not allowed under the constitutional scheme. Therefore, judicial impropriety has far-reaching consequences.

The constitution bench set to resolve this issue consists of the very judge who has rendered an opinion on the same case in a previous instance. This raises question of bias, which should lead to recusal of the judge. However, the bias argued is sui generis as the parties have argued “intellectual bias”. Though Justice Mishra has shown a predisposition towards a particular opinion, his opinion is subject to change based on intellectual arguments and discussion. Traditionally, “pecuniary bias” and “personal bias” have been grounds for recusal of a judge. Indian jurisprudence on bias has not developed to the extent of being able to respond to a charge of “intellectual bias”.

However, Justice Mishra presiding over the bench effectively meant that he was adjudicating on the correctness of his own judgement in a reference. Comparisons may be drawn from the European Court of Human Rights, where the same court is divided into a ‘Chamber’ and a ‘Grand Chamber’. Chamber judges and Grand Chamber judges are drawn from the same overall pool of ECHR judges: The Grand Chamber is made up of the Court’s president and vice presidents, the section presidents and the national judge, together with other judges selected by drawing of lots. But, “When it hears a case on referral, it does not include any judges who previously sat in the Chamber which first examined the case.”

In fact, “bench hunting” cannot be attributed in the present case as the demand of the parties is not to get a favourable bench or to get an opposed judge off the bench. Rather, the parties seek recusal of a judge already inclined towards a particular opinion. Judicial propriety demands that Justice Mishra should have recused from the bench because of predisposition that he had expressed earlier. This aspect of judicial propriety is also evident from principles encapsulated in the appeal mechanism of the ECHR discussed above.

This conflict may also be resolved from the perspective of what a judicial institution sets out to establish. The Supreme Court has always functioned on the principles of justice in the true sense, that is, “Justice should not only be done, but also seen to be done”. In the present case, there is no compelling or justifiable reason to depart from that established principle. At present, the Supreme Court is functioning with the full strength of the CJI and 33 other judges. It would have been more appropriate if the case had been heard by any judge other than Justice Mishra to do complete justice and which would have seemed fair in the eyes of the people.

One may recall the words of former Supreme Court Justice AK Sikri, “The judiciary even without the sword or the purse remains the guardian of the Constitution. Its sole strength lies in the public confidence and trust.” The Supreme Court had warned, “Erosion of credibility of the judiciary in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary …The societal perception of judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously.”

(The writer is a student at Keshav Mahavidyalaya, Delhi University)

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