INDORE DEVELOPMENT AUTHORITY v. MANOHAR LAL & ORS. ETC.

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A established that Senator Pinochet was not immune from the process of extradition. He concluded that: (Pinochet case, AC p. 135C- D) “… the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a Judge applies just as much if the Judge’s decision will lead to the promotion of a cause in which the Judge is involved together with one of the parties.” (emphasis supplied)

24. After so concluding, dealing with the last question, whether the fact that Lord Hoffman was only a member of AICL but not a member of Amnesty International made any difference to the principle, Lord Wilkinson opined that: (Pinochet case, AC p. 132H- 133A) even though a Judge may not have financial interest in the outcome of a case, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial…. and held that: (AC p. 135 E-F) “… If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a Judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions….” This aspect of the matter was considered in P.D. Dinakaran (1) F v. Judges Inquiry Committee, (2011) 8 SCC 380

25. From the above decisions, in our opinion, the following principles emerge: 25.1. If a Judge has a financial interest in the outcome of a case, G he is automatically disqualified from hearing the case. 25.². In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest

INDORE DEVELOPMENT AUTHORITY v. 1129 MANOHAR LAL & ORS. [ARUN MISHRA, J.]

disqualifies the Judge tested in the light of either on the principle A of “real danger” or “reasonable apprehension” of bias. 25.3. The Pinochet case added a new category i.e. that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case. B

26. It is nobody’s case that, in the case at hand, Justice Khehar had any pecuniary interest or any other interest falling under the second of the abovementioned categories. By the very nature of the case, no such interest can arise at all.

27. The question is whether the principle of law laid down in C Pinochet case is attracted. In other words, whether Justice Khehar can be said to be sharing any interest which one of the parties is promoting. All the parties to these proceedings claim to be promoting the cause of ensuring the existence of an impartial and independent judiciary. The only difference of opinion between the D parties is regarding the process by which such a result is to be achieved. Therefore, it cannot be said that Justice Khehar shares any interest which any one of the parties to the proceeding is seeking to promote.

28. The implication of Shri Nariman’s submission is that Justice E Khehar would be predetermined to hold the impugned legislation to be invalid. We fail to understand the stand of the petitioners. If such apprehension of the petitioners comes true, the beneficiaries would be the petitioners only. The grievance, if any, on this ground should be on the part of the respondents. F

29. The learned Attorney General appearing for the Union of India made an emphatic statement that the Union of India has no objection for Justice Khehar hearing the matter as a Presiding Judge of the Bench.

30. No precedent has been brought to our notice, where courts G ruled at the instance of the beneficiary of bias on the part of the adjudicator, that a judgment or an administrative decision is either voidable or void on the ground of bias. On the other hand, it is a well-established principle of law that an objection based on bias

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A of the adjudicator can be waived. Courts generally did not entertain such objection raised belatedly by the aggrieved party: “The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory. The court normally insists that the objection shall be taken as B soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisors know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged.” C In our opinion, the implication of the above principle is that only a party who has suffered or is likely to suffer an adverse adjudication because of the possibility of bias on the part of the adjudicator can raise the objection.

31. The significant power as described by Shri Nariman does not inhere only to the members of the Collegium, but inheres in every Judge of this Court who might be called upon to express his opinion regarding the proposals of various appointments of the High Court Judges, Chief Justices or Judges of this Court, while the members of the Collegium are required to exercise such “significant power” with respect to each and every appointment of the abovementioned categories, the other Judges of this Court are required to exercise such “significant power”, at least with respect to the appointments to or from the High Court with which they were earlier associated with either as Judges or Chief Justices. The argument of Shri Nariman, if accepted would render all the Judges of this Court F disqualified from hearing the present controversy. A result not legally permitted by the “doctrine of necessity”. Justice J.S. Khehar, in his opinion, has observed thus: “57. The reason that was pointed out against me, for seeking my recusal was, that I was a part of the 1 + 4 Collegium. But that G should have been a disqualification for Anil R. Dave, J. as well. When he commenced hearing of the matters, and till 7-4-2015, he suffered the same alleged disqualification. Yet, the objection raised against me, was not raised against him. When confronted, Mr Fali S. Nariman vociferously contested, that he had not sought the recusal of Anil R. Dave, J. He supported his assertion with H

INDORE DEVELOPMENT AUTHORITY v. 1131 MANOHAR LAL & ORS. [ARUN MISHRA, J.]

proof. One wonders, why did he not seek the recusal of Anil R. A Dave, J.? There is no doubt about the fact, that I have been a member of the 1 + 4 Collegium, and it is likely that I would also shortly become a Member of NJAC, if the present challenge raised by the petitioners was not to succeed. I would therefore remain a part of the selection procedure, irrespective of the process which B prevails. That however is the position with reference to four of us (on the instant five-Judge Bench). Besides me, my colleagues on the Bench — J. Chelameswar, Madan B. Lokur and Kurian Joseph, JJ. would in due course be a part of the Collegium (if the writ petitioners before this Court were to succeed), or alternatively, would be a part of NJAC (if the writ petitioners were to fail). In C such eventuality, the averment of conflict of interest, ought to have been raised not only against me, but also against my three colleagues. But, that was not the manner in which the issue has been canvassed. In my considered view, the prayer for my recusal is not well founded. If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified. It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office to uphold the Constitution and the laws. My decision to continue to be a part of the Bench, flows from the oath which I took, at the time of my elevation to this Court. (emphasis supplied) Justice Lokur, in his opinion, has observed: G “60. In my respectful opinion, when an application is made for the recusal of a Judge from hearing a case, the application is made to the Judge concerned and not to the Bench as a whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I respect his decision. H

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A 65. The issue of recusal from hearing a case is not as simple as it appears. The questions thrown up are quite significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other Judges on the Bench.” B It has been held that decision to recuse is that of the Judge concerned, and unjustified pressure should never be allowed.

35Copy pinpoint35. Shri Tushar Mehta, learned Solicitor General, has relied upon the decision in Subrata Roy Sahara v. Union of India & Ors., (2014) C 8 SCC 470. Recusal of the Bench was sought by way of filing a petition. The embarrassment which is caused by such a prayer, concept of correction of a mistake, if any, recognition of mistake and its rectification have also been considered. This Court has observed: “7. Now the embarrassment part. Having gone through the pleadings of the writ petition we were satisfied that nothing expressed therein could be assumed as would humiliate or discomfort us by putting us to shame. To modify an earlier order passed by us for a mistake we may have committed, which is apparent on the face of the record, is a jurisdiction we regularly exercise under Article 137 of the Constitution of India. Added to that, it is open to a party to file a curative petition as held by this Court in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC

388. These jurisdictions are regularly exercised by us, when made out, without any embarrassment. Correction of a wrong order would never put anyone to shame. Recognition of a mistake, and its rectification, would certainly not put us to shame. In our considered view, embarrassment would arise when the order assailed is actuated by personal and/or extraneous considerations, and the pleadings record such an accusation. No such allegation was made in the present writ petition. And therefore, we were fully satisfied that the feeling entertained by the petitioner, that we would not pass an appropriate order, if the order impugned dated 4-3-2014 was found to be partly or fully unjustified, was totally misplaced.”

36Copy pinpoint36. In Subrata Roy Sahara (supra) this Court has also referred to the decision of Mr. R.K. Anand’s case (supra) in which it has been H

INDORE DEVELOPMENT AUTHORITY v. 1133 MANOHAR LAL & ORS. [ARUN MISHRA, J.]

observed that the path of recusal is very often a convenient and a soft A option as a Judge has no vested interest in doing a particular matter. It is the Constitution of India which enjoins a Judge to duly and faithfully and to the best of his ability, knowledge, and judgment, perform the duties of his office without fear or favour. Affronts, jibes, and consciously planned snubs should not deter us from discharging our onerous responsibility. B This Court has observed: “10. We have recorded the above narration, lest we are accused of not correctly depicting the submissions as they were canvassed before us. In our understanding, the oath of our office required us to go ahead with the hearing. And not to be overawed by such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will.

11. This is certainly not the first time when solicitation for recusal has been sought by the learned counsel. Such a recorded peremptory prayer was made by Mr R.K. Anand, an eminent Senior Advocate, before the High Court of Delhi seeking the recusal of Mr Justice Manmohan Sarin from hearing his personal case. Mr Justice Manmohan Sarin while declining the request made by Mr R.K. Anand, observed as under: E “The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the Constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/ Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office.” The above determination of the High Court of Delhi was assailed before this Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106. The determination of the High Court whereby Mr Justice H

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A Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld, with the following observations: (SCC p. 192, para 263) “263. The above passage, in our view, correctly sums up what should be the court’s response in the face of a request B for recusal made with the intent to intimidate the court or to get better of an ‘inconvenient’ Judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice.” C (emphasis supplied) In fact, the observations of the High Court of Delhi and those of this Court reflected exactly how it felt, when the learned counsel addressed the Court at the commencement of the hearing. If it was the learned counsel’s posturing antics, aimed at bench-hunting or bench-hopping (or should we say, bench-avoiding), we would not allow that. Affronts, jibes and carefully and consciously planned snubs could not deter us from discharging our onerous responsibility. We could at any time during the course of hearing walk out and make way for another Bench to decide the matter, if ever we felt that that would be the righteous course to follow. Whether or not it would be better for another Bench to hear this case will emerge from the conclusions, we will draw, in the course of the present determination.

131. We shall now deal with the substance, and the import, of the judgments relied upon. It is not the case of the petitioner that we have any connection with either the two Companies under reference, or any other company/firm which constitutes the Sahara Group. We may state, that neither of us has even a single share with the two Companies concerned or with any other company/ firm comprising of the Sahara Group. In order to remove all ambiguity in the matter we would further state, that neither of us, nor any of our dependent family members, own even a single share in any company whatsoever. Neither of us has been assisted in this case, for its determination on merits by any law clerk, intern or staff member, while hearing, dealing with or deciding the

INDORE DEVELOPMENT AUTHORITY v. 1135 MANOHAR LAL & ORS. [ARUN MISHRA, J.]

controversy. Nor has any assertion in this behalf been made against us by the petitioner or his learned counsel. Accordingly, the factual position, which was the basis of the decisions relied upon by the learned counsel, is not available in the facts and circumstances of this case. In the above view of the matter, it is but natural to conclude, that none of the judgments relied upon by the learned Senior Counsel for the petitioner, on the subject of bias, are applicable to the facts and circumstances of this case. We are satisfied that none of the disguised aspersions cast by the learned Senior Counsel, would be sufficient to justify the invocation of the maxim, that justice must not actually be done, but must also appear to be done. As already noticed above, even though our combination as a Bench, did not exist at the time, when the present petition was filed, a Special Bench, with the present composition, was constituted by the Hon’ble the Chief Justice, as a matter of his conscious determination. No litigant can be permitted to dissuade us in discharging the onerous responsibility assigned to us by the Hon’ble the Chief Justice.

135. Dr. Rajeev Dhavan, learned Senior Counsel also accused us of having a predisposition in respect of the controversy. This predisposition, according to him, appeared to be on the basis of a strong commitment towards the “other side”. This assertion was repeated several times during the hearing. But, which is the other side? In terms of our order dated 31-8-2012 the only gainer on the other side is the Government of India. The eighth direction of our order dated 31-8-2012, reads as under: (SCC p. 172, para 326) “326.8. SEBI (WTM) if, after the verification of the details furnished, is unable to find out the whereabouts of all or any of the subscribers, then the amount collected from such subscribers will be appropriated to the Government of India.” (emphasis supplied) G If the “other side”, is the Government of India, there is certainly no substance in the aspersion cast by the learned counsel. Just the above aspect of the matter is sufficient to burst the bubble of all the carefully crafted insinuations, systematically offloaded, by the learned counsel for effect and impact. H

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A 137. The observations recorded in the above judgment in Jaswant Singh v. Virender Singh, 1995 Supp (1) SCC 384, are fully applicable to the mannerism and demeanour of the petitioner Mr Subrata Roy Sahara and some of the learned Senior Counsel. We would have declined to recuse from the matter, even if the “other side”, had been a private party. For, our oath of office requires us to discharge our obligations, without fear or favour. We therefore also commend to all courts, to similarly repulse all baseless and unfounded insinuations, unless of course, they should not be hearing a particular matter, for reasons of their direct or indirect involvement. The benchmark, that justice must not only be done but should also appear to be done, has to be preserved at all costs.”

37Copy pinpoint37. In R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106, it was observed:

264. We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a Judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the Judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the Judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences.”

38Copy pinpoint38. In Kamini Jaiswal v. Union of India & Anr., (2018) 1 SCC 156, this Court has dealt with the matter of recusal thus: “24. There is no conflict of interest in such a matter. In case a Judge is hearing a matter and if he comes to know that any party is unscrupulously trying to influence the decision-making or indulging in malpractices, it is incumbent upon the Judge to take cognizance of such a matter under the Contempt of Courts Act and to deal with and punish such person in accordance with law as that is not the conflict of interest but the purpose for which the entire system exists. Such things cannot be ignored and recusal of a Judge cannot be asked on the ground of conflict of interest, it would be the saddest day for the judicial system of this country to

INDORE DEVELOPMENT AUTHORITY v. 1137 MANOHAR LAL & ORS. [ARUN MISHRA, J.]

ignore such aspects on the unfounded allegations and materials. A It was highly improper for the petitioner to allege conflict of interest in the petition filed that the Hon’ble Chief Justice of India should not hear on judicial side or allocate the matter on the administrative side. It appears that in order to achieve this end the particular request has been made by filing successive petitions day after the other and prayer was made to avoid the Hon’ble Chief Justice of India to exercise the power for allocation of cases which was clearly an attempt at forum hunting and has to be deprecated in the strongest possible words. Making such scandalous remarks also tantamount to interfering with administration of justice, an advocate cannot escape the responsibility on the ground that he drafted the same in his/her personal capacity as laid down in Shamsher Singh Bedi v. High Court of Punjab & Haryana, (1996) 7 SCC 99. In Charan Lal Sahu v. Union of India, (1988) 3 SCC 255, this Court has observed that in a petition filed under Article 32 in the form of PIL attempt of mudslinging against the advocates, Supreme Court and also against the other constitutional institutions indulged in by an advocate in a careless manner, meaningless and as contradictory pleadings, clumsy allegations, contempt was ordered to be drawn. The Registry was directed not to entertain any PIL petition of the petitioner in future.

27. This Court considered various categories of forum shopping in Union of India v. Cipla Ltd., (2009) 8 SCC 106. Even making allegations of a per se conflict of interest require the matter could be transferred to another Bench, has also been held to be another form of forum hunting. This Court has considered various decisions thus: (SCC pp. 318-20, paras 146-155) F “146. The learned Solicitor General submitted that Cipla was guilty of forum shopping inasmuch as it had filed petitions in the Bombay High Court, the Karnataka High Court and also an affidavit in the Delhi High Court as a member of the Bulk Drug Manufacturers Association and had eventually approached the G Allahabad High Court for relief resulting in the impugned judgment and order dated 3-3-2004. It was submitted that since Cipla had approached several constitutional courts for relief, the proceedings initiated in the Allahabad High Court clearly amount to forum shopping. H

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A 147. We are not at all in agreement with the learned Solicitor General. Forum shopping takes several hues and shades and Cipla’s petitions do not fall under any category of forum shopping.

148. A classic example of forum shopping is when a litigant approaches one Court for relief but does not get the desired relief and then approaches another Court for the same relief. This occurred in Rajiv Bhatia v. State (NCT of Delhi), (1999) 8 SCC

525. The respondent mother of a young child had filed a petition for a writ of habeas corpus in the Rajasthan High Court and apparently did not get the required relief from that Court. She then filed a petition in the Delhi High Court also for a writ of habeas corpus and obtained the necessary relief. Notwithstanding this, this Court did not interfere with the order passed by the Delhi High Court for the reason that this Court ascertained the views of the child and found that she did not want to even talk to her adoptive parents and therefore the custody of the child granted by the Delhi D High Court to the respondent mother was not interfered with. The decision of this Court is on its own facts, even though it is a classic case of forum shopping.

149. In Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790, this Court noted that jurisdiction in a court is not E attracted by the operation or creation of fortuitous circumstances. In that case, circumstances were created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing that to allow the assumption of jurisdiction in created circumstances would only result in encouraging forum shopping. F

150. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier Corpn. v. SNP Shipping Services (P) Ltd., (1998) 5 SCC 310, wherein it was observed that the respondent-plaintiff had made a deliberate attempt to bring the cause of action, namely, a collision between G two vessels on the high seas within the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else.

INDORE DEVELOPMENT AUTHORITY v. 1139 MANOHAR LAL & ORS. [ARUN MISHRA, J.]

151. Another form of forum shopping is taking advantage of A a view held by a particular High Court in contrast to a different view held by another High Court. In Ambica Industries v. CCE, (2007) 6 SCC 769, the assessee was from Lucknow. It challenged an order passed by the Customs, Excise and Service Tax Appellate Tribunal (“CESTAT”) located in Delhi before the Delhi High Court. B CESTAT had jurisdiction over the State of Uttar Pradesh, NCT of Delhi and the State of Maharashtra. The Delhi High Court did not entertain the proceedings initiated by the assessee for want of territorial jurisdiction. Dismissing the assessee’s appeal this Court gave the example of an assessee affected by an assessment order in Bombay invoking the jurisdiction of the Delhi High Court to take advantage of the law laid down by the Delhi High Court or an assessee affected by an order of assessment made at Bombay invoking the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and consequently evade the law laid down by the Bombay High Court. It was said that this could not be allowed and circumstances such as this would lead to some sort of judicial anarchy.

152. Yet another form of forum shopping was noticed in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501, wherein it was held that successive bail applications filed by a litigant ought to be heard by the same learned Judge, otherwise an unscrupulous litigant would go on filing bail applications before different Judges until a favourable order is obtained. Unless this practice was nipped in the bud, it would encourage unscrupulous litigants and encourage them to entertain the idea that they can indulge in forum shopping, which has no sanction in law and certainly no sanctity.

153. Another category of forum shopping is approaching different courts for the same relief by making a minor change in the prayer clause of the petition. In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P., (2008) 1 SCC G 560, it was noticed by this Court that four writ applications were filed by a litigant and although the prayers were apparently different, the core issue in each petition centred round the recovery of the amount advanced by the bank. Similarly, substituting some

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A petitioners for others with a view to confer jurisdiction on a particular court would also amount to forum shopping by that group of petitioners.

154. Finally and more recently, in Supreme Court Advocates-on-Record Assn. v. Union of India (Recusal Matter), B (2016) 5 SCC 808, Khehar, J. noticed yet another form of forum shopping where a litigant makes allegations of a perceived conflict of interest against a Judge requiring the Judge to recuse from the proceedings so that the matter could be transferred to another Judge.

C 155. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether D a litigant is indulging in forum shopping or not.”

39Copy pinpoint39. In Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC 280, this Court has considered derogatory remarks and efforts to destroy the system. The relevant portions are extracted hereunder:

E “12. This Court in M.B. Sanghi v. High Court of Punjab and Haryana, (1991) 3 SCC 600, while examining a similar case observed: (SCC p. 602, para 2) “2. … The foundation of [judicial] system which is based on the independence and impartiality of those who man it will be F shaken if disparaging and derogatory remarks are made against the presiding judicial officers with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society.” G

13. In Asharam M. Jain v. A.T. Gupta, (1983) 4 SCC 125, while dealing with the issue, this Court observed as under: (SCC p. 127, para 3) “3. … The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the H

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system of administration of justice by vilification of Judges. It A is not that Judges need be protected; Judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected.”

40Copy pinpoint40. The decision in All India Institute of Medical Sciences v. Prof. Kaushal K. Verma, (2015) 220 DLT 446 (W.P. [C] No.4103/ C 2014), rendered by one of us, Ravindra Bhat, J., has also been referred, thus: “25. Before ending this unusually prolix order, which can run into the danger of self-vindication, the Court observes that requests for recusal are to be based on reasonable apprehensions; they cannot be speculative or fanciful suppositions. An observation that needs to be emphasized is that recusals generally, and especially those fuelled by unjustified demands can be burdensome on the judges who are eventually called upon to decide the cause. Whenever made, the concerned court or judge so charged is bound to take it seriously, as it undermines what is the bedrock of justice delivery- impartiality. To borrow the words of Beverely Mclachlin (Chief Justice of Canada) (“Judging in a Democratic State”) : “…judges are not living Oracles. They are human beings, trained in the law, who struggle to understand the situations before them and to resolve them in accordance with the law and their consciences. And judges must learn to live with being wrong. As human beings, judges learn early in their career to deal with criticism. Every new judge dons the judicial robes resolved never to make a mistake. And every new judge fails. Decisions must sometimes be made without the opportunity for full reflection. The law may not be entirely clear. The truth may be elusive. In the result, even the best judges inevitably are found to have erred. The errors are publicly identified by appellate judges and laid plain for all to see. The fact that H

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A appellate judges themselves have been known to err may provide only limited consolation.” If one may add, the greater the experience of the judge, the more acutely she or he is aware of her or his fallibility and the pitfalls of acting on impulse or prejudice. The journey, which begins with certainty, later leads to a path of many grey areas. Given that language itself is an imperfect medium, words are but vessels giving shape to ideas and that no human being is perfect, no judge can claim to be perfect in communicating ideas. The emphasis on a phrase here or an expression there, bereft of anything more, would not ipso facto disclose a predilection, or pre-disposition to decide in a particular manner.” There is a concurring opinion thus: “1. I have seen the draft of the order, prepared by my brother S. Ravindra Bhat, J., on the request of recusal by the Division Bench D headed by him. I fully concur with the conclusions reached by him and the reasoning leading thereto. I would only add that the request for recusal by the Bench ignores the fact that it comprises of two Judges each of whom have an independent mind to apply. The presence of another Judge with equal say strengthens the rigor of the judicial scrutiny and cannot be undermined.” E

41Copy pinpoint41. Mr. Shyam Diwan, learned senior counsel has referred to the foreign Rules stating “what is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw”. In support of his submission, he has referred F to Section 47 of Title 28, Judiciary and Judicial Procedure, 1948 of United States of America; and Rule 24(5)(b) of Rules of Court of the European Union, stating that there is a statutory bar on any judge presiding over cases where judgments delivered by him are to be adjudicated upon in appeal.

42Copy pinpoint42. The decisions and rules relating to the appeal against Chamber Judge are not at all relevant. There is no appeal within the Supreme Court. It has a totally different structure, and has its own corrective mechanism, need not be gainsaid. There is no room for reasonable apprehension to be entertained by the clientele of the respondent’s counsel. There is no question of recusal on pre-disposition as to the legal H

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issue or as to the relief to be granted, such an apprehension also is baseless. The ultimate test is that it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by any fact or law and is able to take an independent view. The answer would lie in examining whether without having any bias or without any pressure or not even irked by such a prayer for recusal, can he decide the case impartially. In case the answer is that he will be able to deliver justice to the cause, he cannot and must not recuse from any case as the duty assigned by the Constitution has to be performed as per the oath and there lies the larger public interest. He cannot shake the faith that the common man reposes in the judiciary as it is the last hope for them.

43Copy pinpoint43. Having surveyed the precedents cited at the Bar, and having considered the arguments, it is my considered view 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- D consideration. The previous judgment cannot constitute bias, or a pre- disposition - 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. The previous decisions and practice of this court have clearly shown E that there can be and is no bar as the respondents’ senior counsel argue. Accepting the plea of recusal would sound a death knell to the independent system of justice delivery where litigants would dictate participation of judges of their liking in particular cases or causes.

44Copy pinpoint44. Recusal is not to be forced by any litigant to choose a Bench. F 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. The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of G justice or discharge of duty as a Judge and judicial decision-making. There is no room for prejudice or bias. Justice has to be pure, untainted, uninfluenced by any factor, and even decision for recusal cannot be influenced by outside forces. However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn H

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A the Bench/es in the future. I have taken an informed decision after considering the nitty-gritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse. ORDER*

1. We have gone through the draft opinion circulated by Arun Mishra J. An application for recusal is dealt with- and has been dealt with, in this case, by the concerned member of the Bench whose participation is sought to be objected to.

2. The approach to be adopted by other members of the Bench to this sensitive issue- in such cases, is best summarized in the view of Justice Madan B. Lokur Supreme Court Advocates-on-Record- Association and Ors. vs. Union of India 2016 (5) 808 where it was stated as follows: “In my respectful opinion, when an application is made for the recusal of a judge from hearing a case, the application is made to the concerned judge and not to the Bench as a whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I respect his decision.

539. In a detailed order pronounced in Court on its own motion v. State and Ors. reference was made to a decision of the Supreme Court of the United States in Jewell Ridge Coal F Corporation v. Local No. 6167, United Mine Workers of America 325 US 897 (1945), wherein it was held that a complaint as to the qualification of a justice of the Supreme Court to take part in the decision of a cause cannot properly be addressed to the Court as a whole and it is the responsibility of each justice to determine for himself the G propriety of withdrawing from a case.

540. This view was adverted to by Justice Rehnquist in Hanrahan v. Hampton 446 US 1301 (1980) in the following words: * Ed. Note : Order passed by Indira Banerjee, Vineet Saran, M.R. Shah, H and S. Ravindra Bhat, JJ.

INDORE DEVELOPMENT AUTHORITY v. 1145 MANOHAR LAL & ORS.

‘Plaintiffs-Respondents and their counsel in these cases have moved that I be recused from the proceedings in this case for the reasons stated in their 14-page motion and their five appendices filed with the Clerk of this Court on April 3, 1980. The motion is opposed by the state-Defendant Petitioners in the action. Since generally the Court as an institution leaves such motions, even though they be addressed to it, to the decision of the individual Justices to whom they refer, see Jewell Ridge Coal Corporation v. Mine Workers 325 U.S. 897 (1945) (denial of petition for rehearing) (Jackson, J., concurring), I shall treat the motion as addressed to me individually. I have considered the motion, the Appendices, C the response of the state Defendants, 28 U.S.C. 455 (1976 ed. And Supp. II), and the current American Bar Association Code of Judicial Conduct, and the motion is accordingly denied.’

541. The issue of recusal may be looked at slightly differently apart from the legal nuance. What would happen if, in a Bench of five judges, an application is moved for the recusal of Judge A and after hearing the application Judge A decides to recuse from the case but the other four judges disagree and express the opinion that there is no justifiable reason for Judge A to recuse from the hearing? Can Judge A be compelled to hear the case even though he/she is desirous of recusing from the hearing? It is to get over such a difficult situation that the application for recusal is actually to an individual judge and not the Bench as a whole.

542. As far as the view expressed by Justice Kurian Joseph F that reasons should be given while deciding an application for recusal, I would prefer not to join that decision. In the first place, giving or not giving reasons was not an issue be- fore us. That reasons are presently being given is a different matter altogether. Secondly, the giving of reasons is fraught G with some difficulties. For example, it is possible that in a given case, a learned judge of the High Court accepts an application for his/her recusal from a case and one of the parties challenges that order in this Court. Upon hearing the parties, this Court comes to the conclusion that the reasons H

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A given by the learned judge were frivolous and therefore the order is incorrect and is then set aside. In such an event, can this Court pass a consequential order requiring the learned judge to hear the case even though he/she genuinely believes that he/she should not hear the case.”

B 3. In view of the above, we are of the opinion that the view of Mishra, J, to reject the application for recusal, is not a matter that can be commented upon by us.

4. With respect to the observations by Mishra, J in his opinion, regarding the legal principles applicable, we are of the considered view that there is no legal impediment or bar to his participation to hearing the reference on the merits in the present Bench.

5. We notice that his order has cited several previous instances where judges who rendered decisions in smaller bench compositions, also participated in larger bench formations when the reasoning (in such previous decisions) was doubted, and the issue referred to larger benches, for authoritative pronouncement.

6. For those and other reasons mentioned in the order of Mishra, J, we concur with his reasoning and conclusions that no legal principle or norm bars his participation in the present Bench which is to hear the reference; the precedents cited and the practice of the court, point to the contrary, i.e. that 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.

7. For the above reasons, and having regard to the reasons contained in Mishra, J’s order, outlining the rejection of the request for his recusal, we are of the considered opinion that this Bench should proceed to hear and decide the reference made to it, on its merits.

Devika Gujral Reference to be heard on merits by the Bench. G