Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NOS.90369038 OF 2016
INDORE DEVELOPMENT AUTHORITY ..PETITIONER(S)
VERSUS
MANOHAR LAL & ORS. ETC. ..RESPONDENTS
WITH
CIVIL APPEAL NOS.1953219533 OF 2017
SPECIAL LEAVE PETITION (C) NOS.97989799 OF 2016
SPECIAL LEAVE PETITION (C) NO. 1708817089 OF 2016
SPECIAL LEAVE PETITION (C) NO.37375 OF 2016
SPECIAL LEAVE PETITION (C) NO.37372 OF 2016
SPECIAL LEAVE PETITION (C) NOS.1657316605 OF 2016
SPECIAL LEAVE PETITION (C) NO....CC NO. 15967 OF 2016
CIVIL APPEAL NO.19356 OF 2017
CIVIL APPEAL NO.19362 OF 2017
CIVIL APPEAL NO.19361 OF 2017
CIVIL APPEAL NO.19358 OF 2017
CIVIL APPEAL NO.19357 OF 2017
CIVIL APPEAL NO.19360 OF 2017
CIVIL APPEAL NO.19359 OF 2017
SPECIAL LEAVE PETITION (C) NOS. 3475234753 OF 2016
Signature Not Verified
SPECIAL LEAVE PETITION (C) NO.15890 OF 2017
Digitally signed by
NARENDRA PRASAD
Date: 2019.10.24
12:00:44 IST
Reason:
CIVIL APPEAL NO.19363 OF 2017
CIVIL APPEAL NO.19364 OF 2017
1
CIVIL APPEAL NO.19412 OF 2017
M.A. 1423 OF 2017 IN CIVIL APPEAL NO.12247 OF 2016
SPECIAL LEAVE PETITION (C) NO.33022 OF 2017
SPECIAL LEAVE PETITION (C) NO.33114 OF 2017
SPECIAL LEAVE PETITION (C) NO.33127 OF 2017
M.A. 1787 OF 2017 IN CIVIL APPEAL NO.10210 OF 2016
M.A. 1786 OF 2017 IN CIVIL APPEAL NO.10207 OF 2016
M.A. 45 OF 2018 IN CIVIL APPEAL NO.6239 OF 2017
SPECIAL LEAVE PETITION (C) NO.16051 OF 2019
DIARY NO. 23842 OF 2018
SPECIAL LEAVE PETITION (C) NO.30452 OF 2018
CIVIL APPEAL NO.4835 OF 2015
SPECIAL LEAVE PETITION (C) NOS.3057730580 OF 2015
O R D E R
ARUN MISHRA, J.
1. The question of interpretation of Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (for short, 'the Act of 2013'), has been
referred to a fiveJudge Constitution Bench of this Court.
2. A threeJudge Bench of this Court in
Pune Municipal Corporation
& Anr. v. Harakchand Misirimal Solanki & Ors. (2014) 3 SCC 183, had
delivered a judgment interpreting section 24 of the Act of 2013. In
Yogesh Neema & Ors. v. State of Madhya Pradesh (2016) 6 SCC 387, a
twoJudge Bench, doubted the decision of Sree Balaji Nagar
2
(2015) 3 SCC 353 and referred
Residential Assn. v. State of Tamil Nadu
the matter to a larger Bench.
3. Yet in another Civil Appeal No.20982 of 2017 arising out of
S.L.P. (C) No.2131 of 2016 ( Indore Development Authority vs.
2018 SCC Online SC 100) the
Shailendra (Dead) through Lrs. & Ors.,
matter was referred to a larger Bench on 7.12.2017. The following
observations were made in Indore Development Authority (supra):
“19. It was also urged that this Court is also bound to prevent
the abuse of process of law. The cases which have been
concluded are being revived. In spite of not accepting the
compensation deliberately and statement are made in the
Court that they do not want to receive the compensation at
any cost, and they are agitating the matter time and again
after having lost the matters and when proceedings are kept
pending by interim orders by filing successive petitions, the
provisions of section 24 cannot be invoked by such
landowners.
20. There is already a reference made as to the applicability of
section 24 in SLP (C) No.10472/2008 – Yogesh Neema & Ors v.
State of M.P. & Ors. vide order dated 12.01.2016. There are
several other issues arising which have been mentioned above
but have not been considered in Pune Municipal Corpn.
(supra). Thus, here is a case where the matter should be
considered by a larger Bench. Let the matter be placed before
Hon’ble the Chief Justice of India for appropriate orders.”
4. In
Indore Development Authority v. Shailendra (Dead) thr. Lrs. &
Ors. (supra), the bench consisting of one of us, namely, Arun Mishra,
J., Adarsh Kumar Goel, J. and Mohan M. Shantanagoudar, J. has
decided the matter, and the view taken is that in Pune Municipal
Corporation (supra), the Court did not consider several aspects as to
3
the interpretation of section 24 of the Act of 2013. The decision
mentioned above was accepted unanimously by the three Judges.
However, as Pune Municipal Corporation (supra) was a judgment by a
bench of coordinate strength, two of us, namely, myself and Adarsh
Kumar Goel, J. opined that decision is per incuriam. However, Mohan
M. Shantanagoudar, J. opined that it would be appropriate to refer the
matter to a larger Bench. In the majority opinion in Indore
Development Authority (supra), the questions formulated have been
answered thus:
answers to the questions are as follows:
“228. Our
Q. No. I: The word 'paid' in section 24 of the Act of 2013 has
the same meaning as 'tender of payment' in section 31(1) of
the Act of 1894. They carry the same meaning, and the
expression 'deposited' in section 31(2) is not included in the
expressions 'paid' in section 24 of the Act of 2013 or in 'tender
of payment' used in section 31(1) of the Act of 1894. The words
'paid'/tender' and 'deposited' are different expressions and
carry different meanings within their fold.
In section 24(2) of the Act of 2013 in the expression
'paid,' it is not necessary that the amount should be deposited
in Court as provided in section 31(2) of the Act of 1894. Non
deposit of compensation in Court under section 31(2) of the
Act of 1894 does not result in a lapse of acquisition under
section 24(2) of the Act of 2013. Due to the failure of deposit in
Court, the only consequence at the most in appropriate cases
may be of a higher rate of interest on compensation as
envisaged under section 34 of the Act of 1894 and not lapse of
acquisition.
Once the amount of compensation has been
unconditionally tendered, and it is refused, that would amount
to payment, and the obligation under section 31(1) stands
discharged, and that amounts to the discharge of obligation of
payment under section 24(2) of the Act of 2013 also. It is not
open to the person who has refused to accept compensation, to
urge that since it has not been deposited in Court, the
acquisition has lapsed. Claimants/landowners, after refusal,
4
cannot take advantage of their own wrong and seek protection
under the provisions of section 24(2).
Q. No. II: The normal mode of taking physical possession
under the land acquisition cases is drawing of Panchnama as
held in Banda Development Authority (supra).
Q. No. III: The provisions of section 24 of the Act of 2013, do
not revive barred or stale claims such claims cannot be
entertained.
Q. No. IV: Provisions of section 24(2) do not intend to cover
the period spent during litigation and when the authorities
have been disabled to act under section 24(2) due to the final
or interim order of a court or otherwise, such period has to be
excluded from the period of five years as provided in section
24(2) of the Act of 2013. There is no conscious omission in
section 24(2) for the exclusion of a period of the interim order.
There was no necessity to insert such a provision. The
omission does not make any substantial difference as to legal
position.
Q. No. V: The principle of actus curiae neminem gravabit is
applicable, including the other common law principles for
determining the questions under section 24 of the Act of 2013.
The period covered by the final/ interim order by which the
authorities 196 have been deprived of taking possession has to
be excluded. Section 24(2) has no application where Court has
quashed acquisition.”
Question Nos.2, 3, 4, and 5, which have been decided, did not
arise in Pune Municipal Corporation (supra). Question No.2 was a
general question with respect to the mode of taking possession under
the land acquisition cases. Remaining question arose out of Yogesh
Neema (supra).
5. A threeJudge Bench of this Court on 21.2.2018 requested the
other benches to defer the hearing until a decision, one way or the
other, on the issue whether the matter should be referred to the larger
Bench or not.
5
6. A Division Bench presided by Adarsh Kumar Goel, J. on
22.2.2018 in Indore Development Authority v. Shyam Verma and Ors .,
(S.L.P. (C) No.9798 of 2016) considered it appropriate to refer the
matter to Hon’ble the Chief Justice of India to refer the issues to be
resolved by a larger Bench at the earliest.
7. On 22.2.2018, a Bench consisting of myself and Amitava Roy, J.
have in State of Haryana v. Maharana Pratap Charitable Trust (Regd.)
& Anr. (Civil Appeal No. 4835 of 2015) referred the matter to the
Hon’ble the Chief Justice of India to constitute an appropriate bench
for consideration of the larger issue. Thus, it is apparent that two
division Benches, i.e. , one consisting of myself and another consisting
of Adarsh Kumar Goel, J. referred the matter to Hon’ble the Chief
Justice of India. Hon'ble, the Chief Justice of India, considered it
appropriate to constitute a Constitution Bench to deal with all the
issues in an apposite manner.
8. The case was listed before a fiveJudge Constitution Bench on
6.3.2018. The Constitution Bench observed that it would consider all
the aspects including the correctness of the decision of
Pune Municipal
Corporation (supra) and the other judgments following the said
decision as well as the judgments rendered in Indore Development
6
(supra). Thus, all the questions are kept open to be decided.
Authority
No particular question has been referred to the larger bench. After
that, Hon'ble, the Chief Justice of India has constituted this Bench to
decide the reference.
9. Mr. Shyam Divan, Mr. Dinesh Dwivedi and Mr. Gopal
Sankarnarayanan, learned Senior Advocates on behalf of the
respondents, have raised a preliminary objection for recusal of one of
us, namely; Arun Mishra, J. on the ground that Constitution Bench
consists of one of the Judges who were on a smaller panel and the
correctness of the opinion cannot be, thus, judged by the Constitution
Bench independently, as a final view has been expressed in Indore
Development Authority (supra) wherein the decision in Pune Municipal
Corporation (supra) has been held to be per incuriam . Thus, the Judge
who has decided the matter in Indore Development Authority (supra) is
predisposed to decide the matter only in a particular way. It was also
submitted that there is reasonable apprehension that the Judge may
have some bias in dealing with the matter by a larger Bench. As such,
one of us, namely; Arun Mishra, J. should recuse. It was further
submitted that a Judge could not sit in appeal to adjudge his
judgment. The jurisdictions are primarily corrective jurisdictions
under the hierarchal system, and professional as well as institutional
integrity demands that the same person should not be a Judge at both
7
levels. The Judge who has decided the matter may be predisposed to
support the previous reasoning and, in that case, it would seem that
he is or she is a Judge in his or her own cause. The learned Counsel
for the respondents are of the view that the Indore Development
Authority (supra) is wrongly decided. The Court or Tribunal should be
above unfairness or bias. The Judge has to step down, in case he
cannot impart justice impartially. The judge or judges concerned
should excuse themselves and abstain from sitting in the case. A
Judge cannot hear an appeal against his/ her own decisions.
10. Per contra , Shri Tushar Mehta, Learned Solicitor General, Shri
Mohan Parasaran, Shri Anoop Chaudhary and Shri Vivek Tankha,
learned Senior Advocates submitted that there is no question of
recusal and as a matter of substance it is the practice of this Court
that the Judges who have decided the matter earlier or have referred it
are made part of the Bench. They have cited several decisions to the
effect that Judges who have delivered a Judgment in a threeJudges
Bench formed part of a fiveJudges Bench or the larger Benches which
decided the matter. The plea of bias or predisposition is not attracted
in the matter of judicial decisions. The plea of bias or predisposition
is based on extrajudicial factors. What the Court is required to
answer is only a pure question of law, and there are occasions when
Hon'ble, the Chief Justice of India, has considered it appropriate to
8
constitute an appropriate bench having decided a case. Recusal of any
Judge cannot be sought on the ground that the decision rendered by
him in a smaller bench has to be considered by the larger bench.
11. Learned Solicitor General submitted that a tendency is growing
in that as soon as important matters are listed, particular articles are
written in the newspapers concerning the Constitution of the bench or
to influence the decision on merits of a case. Newspaper articles are
written to influence Court. The very independence of the judicial
system is at stake, if in this kind of scenario, recusal is sought by
powerful lobbies, and any recusal would be defeating the very oath of
the office which a Judge takes.
12. Shri Mohan Parasaran, learned Senior Counsel has also pointed
out that the practice of this Court makes the law, and the Judges who
have decided the matters in a smaller Bench have ordinarily formed
quorum of the larger Benches. The question is of deciding the legal
principle. In the Review jurisdiction and Curative Petitions; the same
Judge hears the matter. There is nothing wrong in case the Judges
who have heard the matter in smaller Benches form part of the larger
bench. There is no question of any predisposition in such matters or
bias, and as such, the decision rendered in smaller formation cannot
be a ground for seeking recusal.
9
13. The first question before us is 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. For finding an
answer to the same, we have to look into the practice of this Court.
14. Shri M.C. Setalvad, in his autobiography “My Life, Law and other
things” has referred in Chapter 12 the events between 1955 to 1969.
He has referred to one of the important decisions of this Court
delivered by S.R. Das, J., who was the then Acting Chief Justice. It
was the Bengal Immunity case . In 1953, a bench presided over by
Chief Justice Sastri of which Justice Bhagwati was a member held
that State could impose sales tax on goods delivered for consumption
in that State, even though the sale was an interState sale as held in
State of Bombay v. United Motors India Ltd., 1953 SCR 1069 with
Justice Bose and Justice S.R. Das, Justice Bose delivered a dissenting
judgment and S.R. Das, J. as a Junior Judge had also expressed a
contrary opinion in another decision.
15. The same question arose in Bengal Immunity Co. Ltd. v. State of
Bihar, 1955 (2) S.C.R. 603, which came up when S.R. Das, J. was
acting as the Chief Justice. S.R. Das, J. who held strong views on the
10
matter, had the matter placed before larger Bench of seven Judges,
including the two, Justice Bose and Justice Bhagwati, who had
participated in the earlier decision. Justice Bhagwati, who had formed
part of the majority in the United Motors case (supra), agreeing with
the view of Chief Justice Sastri, had reversed his former view, giving
his reasons in detail and held that earlier decision was erroneous.
Following are the extracts from "My Life, Law and other things" by
M.C. Setalvad :
“One of the important decisions of the Supreme Court
delivered while S.R. Das was the Chief Justice, was the Bengal
Immunity Case. That case had an interesting history. Article
286 of the Constitution (as it then stood) prohibited a State
Legislature from imposing sales tax on transactions of inter
State sales and sales in the course of export. The Article was
not, however, happily worded. In 1953, a Bench of the
Supreme Court presided over by Chief Justice Sastri, of which
Justice Bhagwati was a member, held that a State could
impose sales tax on goods delivered for consumption in that
1
State, even though the sale was an interState sale . This
decision was contrary to the express provision of the
Constitution that Parliament alone could authorise the
imposition of a tax on sales in the course of interState sales
and was based on an explanation to Article 286(1)(a), which
was not applicable. Justice Bose had delivered a dissenting
judgment, and S.R. Das as a puisne judge had also expressed
a contrary opinion in another decision.
The same question arose in Bengal Immunity Co. Ltd. v.
2
which came up when S.R. Das was acting as
State of Bihar
the Chief Justice. The Bengal Immunity Co. manufactured
medicinal products in Bengal and sold them all over India
including Bihar. The Company had no office or agent in Bihar
but the Bihar sales tax authorities sought to compel the
Company to register as a dealer in Bihar and pay sales tax on
the ground that goods delivered in Bihar for consumption in
Bihar as a direct result of the sale were liable to sales tax in
Bihar even though the sale had taken place in Bengal. The
view of the State of Bihar was in accordance with the decision
of the Supreme Court in the United Motors Case but Das, who
held strong views in the matter, had the matter placed before a
1 State of Bombay v. United Motors (India) Ltd., (1953) S.C.R. 1069.
2 (1955) 2 S.C.R. 603.
11
larger Bench of seven judges including two, Justice Bose and
Justice Bhagwati, who had participated in the earlier decision.
The matter was of vital importance to the States, because
under the view expressed by Chief Justice Sastri in the United
Motors Case, one State – the State in which goods had been
delivered for consumption as a direct result of the sale – would
be entitled to levy sales tax on such transactions, while, under
the other view, no State at all would be able to tax the goods,
as the transaction of sale would be an interState sale. The
Centre alone could make a law for levying a sales tax on inter
State sales. There is little doubt that the somewhat strained
construction put upon the Explanation to Article 286(1)(a) by
Chief Justice Sastri and the majority was due to the
consideration that the sources of revenue of the States under
the Constitution which were already slender should not be
diminished by denying to the States the opportunity of levying
sales tax altogether in such cases.
Notices were issued to all the States and many of them
intervened by their AdvocatesGeneral. N.C. Chatterjee
appeared for the Bengal Immunity Company, and Lal
Narayanan Sinha, then the Government Advocate of Bihar,
appeared for the State of Bihar. I intervened on behalf of the
State of West Bengal. Sikri, as the AdvocateGeneral,
represented the State of East Punjab.
At the outset arose the question whether the Supreme
Court could overrule its previous decision if it was satisfied
that it was erroneous. That was the first occasion on which the
Court was called upon to deal with this important question.
The Court naturally considered the practice followed in
other final Courts of appeal. The Privy Council had held that
though it was not absolutely bound to follow its earlier
decisions it would seldom differ from them in constitutional
matters as they would have been acted upon both by
Governments and subjects. The United States Supreme Court
had on a number of occasions expressly overruled its previous
decisions. The majority of the Supreme Court including Das
preferred to follow the American practice. Das pointed out the
difference between the position in England where the House of
3
Lords had held that it was bound by its earlier decisions and
India and observed:
But, in a country governed by a federal constitution,
such as the United States of America and the Union of India
are, it is by no means easy to amend the Constitution, if an
erroneous interpretation is put upon it by this Court. An
erroneous interpretation to the Constitution may quite
conceivably be perpetuated or may at any rate remain
unrectified for considerable time to the great detriment to
public wellbeing. The considerations adverted to in the
decisions of the Supreme Court of America quoted above are,
therefore, apposite and apply in full force in determining
whether a previous decision of this Court should or should not
3. In England the position has since changed; the House of Lords is no longer bound by
its own decisions.
12
be disregarded or overruled There is nothing in our
Constitution which prevents us from departing from a previous
decision if we are convinced of its error and its baneful effect
on the general interests of the public.
He then proceeded to point out a number of circumstances
which made it necessary to set right what he considered to be
the harmful effects of the earlier decision which he believed to
be erroneous. He ultimately formulated the governing
principle in these words:
Reference is made to the doctrine of finality of judicial
decisions and it is pressed upon us that we should not reverse
our previous decision except in cases where a material
provision of law has been overlooked or where the decision has
proceeded upon the mistaken assumption of the continuance
of a repealed or expired statute and that we should not differ
from a previous decision merely because a contrary view
appears to us to be preferable. It is needless for us to say that
we should not lightly dissent from a previous pronouncement
of this Court. Our power of review, which undoubtedly exists,
must be exercised with due care and caution and only for
advancing the public wellbeing in the light of the surrounding
circumstances of each case brought to our notice; but we do
not consider it right to confine our power within rigidly fixed
limits, as suggested before us.
The minority, consisting of three Judges, did not, however,
accept this position.
On the merits, the majority of the Court consisting of four
judges, including the acting Chief Justice, came to the
conclusion that the provisions of several parts of Article 286
made it clear that it had to deal with different topics and one
part could not be projected or read into another. The
conclusion reached was that the Explanation to clause (1) (a)
could not be ultimately extended to clause (2) either as an
exception or as a proviso and read as limiting the ambit of
clause (2). Until Parliament provided otherwise by law in
exercise of its powers under clause (2) of the Article, no State
could impose any tax on sales or purchases taking place in the
course of interState trade or commerce. The decision of Chief
Justice Sastri to the extent that it decided to the contrary
could not be accepted as wellfounded on principle or
authority.
The dissenting view was expressed in powerful opinions by
each of the three dissenting Judges. They took the view that
the scheme of the Article was that it fixed the situs of the sales
with a view to avoid multiple taxation. For that purpose, it
divided sales into two categories, “inside sales” and “outside
sales”, and enacted that a State cannot tax an outside sale.
When, in the same context, the Explanation declared that a
sale must be deemed to have taken place in the State in which
the goods are delivered for consumption, its purpose clearly
was to take such sales out of interState trade and stamp them
with the character of interState sales.
13
The most powerful dissent was that delivered by Justice
Aiyar, whose judgment was the most exhaustive and the
longest of the judgments delivered by the various Judges. One
of the notable judgments in the case was that of Justice
Bhagwati who had formed part of the majority in the United
Motors case, agreeing with the view of Chief Justice Sastri. He
reversed his former view with skill, giving his reasons in detail.
He had the courage to state that his opinion in the earlier
decision “was clearly erroneous and public interest demand
the same should be reversed.”
(emphasis supplied)
16. In M/s. Ujagar Prints and Ors. (II) v. Union of India & Ors. (1989)
3 SCC 488, a Constitution Bench of this Court was constituted
consisting of R.S. Pathak, C.J., Sabyasachi Mukherji, S. Natarajan,
M.N. Venkatachaliah and S. Ranganathan, JJ. The question which
arose for consideration was the correctness of the decision in Empire
Industries Ltd. v. Union of India (1985) 3 SCC 314, which was decided
by a Bench consisting of threeJudges, namely S. Murtaza Fazal Ali, S.
Varadarajan, and Sabyasachi Mukherji, JJ. Sabyasachi Mukherji, J.
delivered the judgment on his behalf and S. Murtaza Fazal Ali, J.
Varadarajan partly concurred. The matter was referred to examine
the correctness of the view of Justice Sabyasachi Mukherji expressed
for the Court in Empire Industries Ltd. v. Union of India (supra). The
view taken in the previous decision by Sabyasachi Mukherji, J., was
held to be good law. It was a case where the correctness of the view
taken in Empire Industries case (supra) on certain aspects was
doubted by another Bench of this Court in M/s. Ujagar Prints v. Union
(1986) Supp. SCC 652. Accordingly, the matter was referred
of India
14
to a fivejudge Bench. Sabyasachi Mukherji, J. was one of the
members of the Bench which affirmed his decision in the Empire
case (supra).
Industries
17. There is yet another instance of a Constitution Bench which
comprised of Y.V. Chandrachud, C.J., P.N. Bhagwati, S. Murtaza Fazal
Ali, Amarendra Nath Sen, P. Balakrishna Eradi, JJ. in the matter of
Gyan Devi Anand v. Jeevan Kumar & Ors. (1985) 2 SCC 683, where
the question which arose was whether statutory tenancy is heritable.
In (supra), the correctness of the decision in
Gyan Devi Anand Ganpat
Ladha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573 came up for
consideration. The decision in Ganpat Ladha’s case had been
overruled, and Damadilal v. Parashram, (1976) 4 SCC 855 was
affirmed. The Court has observed thus:
“35. In our opinion, the view expressed by this Court in
Ganapat Ladha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573
and the observations made therein which we have earlier
quoted, do not lay down the correct law. The said decision
does not properly construe the definition of the ‘tenant’ as
given in Section 5(11)(b) of the Act and does not consider the
status of the tenant, as defined in the Act, even after
termination of the commercial tenancy. In our judgment in
(1976) 4 SCC 855, this Court has
Damadilal v. Parashram,
correctly appreciated the status and the legal position of a
tenant who continues to remain in possession after
termination of the contractual tenancy. We have quoted at
length the view of this Court and the reasons in support
thereof. The view expressed by a seven Judge Bench of this
Court in (1979) 4 SCC
Dhanapal Chettiar v. Yesodai Ammal,
214 and the observations made therein which we have earlier
quoted, lend support to the decision of this Court in Damadilal
case . These decisions correctly lay down that the termination
of the contractual tenancy by the landlord does not bring
about a change in the status of the tenant who continues to
15
remain in possession after the termination of the tenancy by
virtue of the provisions of the Rent Act. A proper interpretation
of the definition of tenant in the light of the provisions made in
the Rent Acts makes it clear that the tenant continues to enjoy
an estate or interest in the tenanted premises despite the
termination of the contractual tenancy.”
18. Justice P.N. Bhagwati concurred with the view and overruled his
own decision in Ganpat Ladha’s case (supra). Justice Bhagwati has
observed thus:
“3. On November 6, 1960 the appellantlandlord filed a suit
for eviction which is now before us. On August 30, 1962, the
first date of hearing, the issues were framed. On June 18,
1963, the trial court decreed the suit on the following findings:
the notice to quit was valid and duly served; the arrears of rent
were properly demanded under Section 12(2) of the Act; the
demand was not complied with in accordance with law by the
tenant within a month of the demand; the case was governed
by the provisions of Section 12(3)(b) and not by the provisions
of Section 12(3)(a) because a dispute about the fixation of
standard rent was still pending when the notice demanding
standard rent was given; nevertheless, the tenant was not
entitled to the protection of Section 12(3)(b), since he had not
paid the rent regularly in accordance with the conditions
under which the protection of Section 12(3)(b) could be given
to him.”
19. Also, in the landmark decision of Kesavananda Bharati v. the
State of Kerala (1973) 4 SCC 225, the earlier view held by this Court in
Sajjan Singh v. State of Rajasthan 1965 AIR SC 845 was overruled
though some of the Hon’ble Judges in the two cases were common.
20. In
Hyderabad Industries Limited and Anr. v. Union of India &
Ors. (1995) 5 SCC 338, a threeJudge Bench of this Court consisting
of A.M. Ahmadi, C.J., S.P. Bharucha, and K.S. Paripoornan, JJ.
doubted the correctness of the view taken in Khandelwal Metal &
16
(1985) 3 SCC 620 and referred the
Engineering Works v. Union of India
matter to a larger Bench. The larger bench consisted of S.P.
Bharucha, B.N. Kirpal, S. Rajendra Babu, Syed Mohammed Quadri,
and M.B. Shah, JJ. They answered the reference reported in
Hyderabad Industries Ltd. & Anr. v. Union of India & Ors. (1999) 5 SCC
15. It is significant to note that S.P. Bharucha, J., who had doubted
the correctness of the decision and referred the matter to a
Constitution Bench, has overruled the earlier view on certain grounds.
21. In M/s. Cloth Traders (P) Ltd. v. Additional C.I.T., GujaratI, (1979)
3 SCC 538, a threeJudge Bench consisting of P.N. Bhagwati, D.A.
Desai, and A.D. Koshal, JJ. decided the question of intercorporate
dividends. The correctness of this decision was taken up for
consideration before a Constitution Bench of Y.V. Chandrachud, C.J.,
P.N. Bhagwati, Amarendra Nath Sen, D.P. Madon, M.P. Thakkar, JJ.
in Distributors (Baroda) Pvt. Ltd. v. Union of India & Ors., (1986) 1 SCC
43, in which the decision in M/s. Cloth Traders (P) Ltd. v. Addl. CIT,
Gujarat (supra), was overruled. P.N. Bhagwati, J. delivered the
judgment for the Constitution Bench. He was also the author of the
earlier judgment in M/s. Cloth Traders (P) Ltd. v. Addl. CIT, Gujarat
(supra), which had been overruled. This Court has observed thus:
“19. But, even if in our view the decision in M/s. Cloth Traders
,
(P) Ltd. v. Additional C.I.T., GujaratI (1979) 3 SCC 538 is
erroneous, the question still remains whether we should
17
overturn it. Ordinarily we would be reluctant to overturn a
decision given by a Bench of this Court, because it is essential
that there should be continuity and consistency in judicial
decisions and law should be certain and definite. It is almost
as important that the law should be settled permanently as
that it should be settled correctly. But there may be
circumstances where public interest demands that the
previous decision be reviewed and reconsidered. The doctrine
of stare decisis should not deter the Court from overruling an
earlier decision, if it is satisfied that such decision is
manifestly wrong or proceeds upon a mistaken assumption in
regard to the existence or continuance of a statutory provision
or is contrary to another decision of the Court. It was Jackson,
J. who said in his dissenting opinion in Massachusetts v.
United States 333 US 611: “I see no reason why I should be
consciously wrong today because I was unconsciously wrong
yesterday.” Lord Denning also said to the same effect when he
observed in Ostime v. Australian Mutual Provident Society
(1960) AC 549: “The doctrine of precedent does not compel
Your Lordships to follow the wrong path until you fall over the
edge of the cliff.” Here we find that there are overriding
considerations which compel us to reconsider and review the
decision in Cloth Traders case (supra). In the first place, the
decision in Cloth Traders case (supra) was rendered by this
Court on May 4, 1979 and immediately thereafter, within a few
months, Parliament introduced Section 80AA with
retrospective effect from April 1, 1968 with a view to overriding
the interpretation placed on Section 80M in Cloth Traders
case (supra). The decision in Cloth Traders case (supra) did not
therefore hold the field for a period of more than a few months,
and it could not be said that any assessee was misled into
acting to its detriment on the basis of that decision. There was
no decision of this Court in regard to the interpretation of sub
section (1) of Section 80M prior to the decision in Cloth
Traders case (supra), and there was therefore no authoritative
pronouncement of this Court on this question of interpretation
on which an assessee could claim to rely for making its fiscal
arrangements. The only decision in regard to the interpretation
of subsection (1) of Section 80M given by any High Court
prior to the decision in Cloth Traders case (supra), was that of
the Gujarat High Court in Addl. CIT v. Cloth Traders Pvt. Ltd .
(1974) 97 ITR 140 (Guj.) and that decision took precisely the
same view which we are inclined to accept in the present case.
It is therefore difficult to see how any assessee can legitimately
complain that any hardship or inconvenience would be caused
to it if the decision in Cloth Traders case was overturned by us.
If despite the decision of the Gujarat High Court in Addl. CIT v.
Cloth Traders Pvt. Ltd. the assessee proceeded on the
assumption, now found to be erroneous, that the Gujarat High
Court decision was wrong and the deduction permissible
under subsection (1) of Section 80M was liable to be
calculated with reference to the full amount of dividend
18
received by the assessee, the assessee can have only itself to
blame. Knowing fully well that the Gujarat High Court had
decided the question of interpretation of subsection (1) of
Section 80M in favour of the Revenue and there was no
decision of this Court taking a different view, no prudent
assessee could have proceeded to make its financial
arrangements on the basis that the decision of the Gujarat
High Court was erroneous. Moreover, we find, for reasons we
have already discussed, that the decision in Cloth Traders case
is manifestly wrong because it has failed to take into account a
very vital factor, namely, that the deduction required to be
made under subsection (1) of Section 80M is not from the
gross total income but from “such income by way of
dividends”. There is also another circumstance which makes it
necessary for us to reconsider and review the decision in Cloth
Traders case , and that is the decision in Cambay Electric
Supply Co. case (1978) 2 SCC 644. The decision in Cloth
Traders case is inconsistent with that in Cambay Electric
Supply Co. case . Both cannot stand together. If one is correct,
the other must logically be wrong and vice versa. It is therefore
necessary to resolve the conflict between these two decisions
and harmonise the law and that necessitates an inquiry into
the correctness of the decision in Cloth Traders case . It is for
this reason that we have reconsidered and reviewed the
decision in Cloth Traders case , and on such reconsideration
and review, we have come to the conclusion that the decision
in Cloth Traders case is erroneous and must be overturned.”
This Court has observed that law should be settled permanently
and that it should be settled correctly. There may be circumstances
where public interest demands that the previous decision be reviewed
and reconsidered. Thus, it is apparent that this is the consistent
practice of this Court that Judges who had rendered the earlier
decision have presided over or been part of the larger Bench.
22. Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of Income
Tax, Bombay North, Ahmedabad (1963) Supp. 1 SCR 871 came up for
consideration in Keshav Mills Co. Ltd. v. Commissioner of Income Tax,
19
(1965) 2 SCR 908. The Constitution
Bombay North, Ahmedabad
Bench comprised of sevenJudges in Keshav Mills Co. Ltd. , M.
Hidayatullah, J. was part of the Bench in both the matters. There are
other instances which have been cited indicating the practice of this
Court.
23. Shri Mohan Parasaran learned Senior Counsel has submitted
that practice of the Court is the law of the Court and binding and
should normally be adhered to in the absence of rules to the contrary.
He referred to the decision of
Jamal Uddin Ahmad v. Abu Saleh
Najmuddin, (2003) 4 SCC 257, which held thus:
“18. Subsection (1) of the abovesaid provision required the
election petition being presented to the Election Commission.
Subsection (2) provided for the election petition being
delivered to the Secretary to the Commission or to such other
officer as may be appointed by the Election Commission or
even being sent by registered post and delivered to the
Secretary to the Commission or the officer appointed so as to
be deemed to have been presented to the Election
Commissioner. While “High Court” has been substituted in
place of Election Commission in subsection (1), subsection
(2) of the erstwhile Section 81 has been deleted without re
enacting a corresponding provision. The reason is more than
obvious. Parliament knew that so far as the Election
Commission is concerned, it was considered necessary to trust
only the Secretary to the Commission or such other officer as
may be appointed by the Election Commission entrusted with
the responsibility of receiving the election petition presented to
the Election Commission. So far as the High Court is
concerned, such a provision was not required to be enacted
into the Act. Jurisdiction to try an election petition has been
conferred on the High Court in place of the Election Tribunal.
The High Court is a constitutional court which was pre
existing. It is a court of record and exercises plenary powers.
The High Court being a preexisting judicial institution also
had rules, directions and practice already existing and
prevalent and governing the reception of documents presented
to it; the same would apply to election petitions. Cursus curiae
est lex curiae — The practice of the Court is the law of the
20
Court. Every Court is the guardian of its own records and the
master of its own practice; and where a practice has existed, it
is convenient, except in cases of extreme urgency and
necessity, to adhere to it, because it is the practice, even
though no reason can be assigned for it; for an inveterate
practice in law generally stands upon principles that are
founded in justice and convenience. (See Broom's Legal
Maxims, 10th Edn., p. 82.) Even in the absence of Chapter
VIIIA in the Gauhati High Court Rules there would have been
nothing wrong in the High Court or the Chief Justice
authorizing any of its officers to receive the election petition
presented to it so as to enable exercise of the jurisdiction
conferred on the High Court by Chapter II of the Act. The
Gauhati High Court thought it proper to incorporate Chapter
VIIIA in its Rules in view of the amendment made in Chapter
II of the Act.”
(emphasis supplied)
24. Shri Mohan Parasaran, learned Senior Counsel has also relied
upon the decision of the Supreme Court of United States in John
Patrick LITEKY v. United States , 510 U.S. 540 (1994), where the
question of recusal based on “extrajudicial source” doctrine came up
for consideration. The Supreme Court of United States held:
“[5] [6] [7] The judge who presides at a trial may, upon completion
of the evidence, be exceedingly ill disposed towards the defendant,
who has been shown to be a thoroughly reprehensible person. But
the judge is not thereby recusable for bias or prejudice, since his
knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are
indeed sometimes (as in a bench trial) necessary to completion of
the judge’s task. As Judge Jerome Frank pithily put it: “Impartiality
is not gullibility. Disinterestedness does not mean childlike
innocence. If the Judge did not form judgments of the actors in
those courthouse dramas called trials, he could never render
decisions.” In re J.P. Linahan, Inc., 138 F.2d 650, 654 (CA2 1943).
Also not subject to deprecatory characterization as “bias” or
“prejudice” are opinions held by judges as a result of what they
learned in earlier proceedings. It has long been regarded as normal
and proper for a judge to sit in the same case upon its remand, and
to sit in successive trials involving the same defendant.
[8] [9] It is wrong in theory, though it may not be too far off the
mark as a practical matter, to suggest, as many opinions have, that
“extrajudicial source” is the only basis for establishing disqualifying
21
bias or prejudice. It is the only common basis, but not the exclusive
one, since it is not the exclusive reason a predisposition can be
wrongful or inappropriate. A favourable or unfavourable
predisposition can also deserve to be characterized as “bias” or
“prejudice” because, even though it springs from the facts adduced
or the events occurring at trial, it is so extreme as to display clear
inability to render fair judgment. (That explains what some courts
have called the “pervasive bias” exception to the “extrajudicial
source” doctrine. See,
e.g., Davis v. Board of School Comm’rs of
Mobile County, 517 F.2d 1044, 1051 (CA5 1975), cert. denied, 425
U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).
[13] [14] For all these reasons, we think that the “extrajudicial
source” doctrine, as we have described it, applies to § 455(a). As we
have described it, however, there is not much doctrine to the
doctrine. The fact that an opinion held by a judge derives from a
source outside judicial proceedings is not a necessary condition for
“bias or prejudice” recusal, since predisposition developed during
the course of a trial will sometimes (albeit rarely) suffice. Nor is it a
sufficient condition for “bias or prejudice” recusal, since some
opinions acquired outside the context of judicial proceedings (for
example, the judge’s view of the law acquired in scholarly reading)
will not suffice. Since neither the presence of an extrajudicial
source necessarily establishes bias, nor the absence of an
extrajudicial source necessarily precludes bias, it would be better to
speak of the existence of a significant (and often determinative)
“extrajudicial source” factor, than of an “extrajudicial source”
doctrine, in recusal jurisprudence.
[15] [16] [17] [18] The facts of the present case do not require us to
describe the consequences of that factor in complete detail. It is
enough for present purposes to say the following: First, judicial
rulings along almost never constitute a valid basis for a bias or
partiality motion. See United States v. Grinnell Corp., 384 U.S., at
583, 86 S.Ct., at 1710. In and of themselves ( i.e., apart from
surrounding comments or accompanying opinion), they cannot
possibly show reliance upon an extrajudicial source; and can only
in the rarest circumstances evidence the degree of favouritism or
antagonism required (as discussed below) when no extrajudicial
source is involved. Almost invariably, they are proper grounds for
appeal, not for recusal. Second, opinions formed by the judge on
the basis of facts introduced or events occurring in the course of the
current proceedings or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless the display a deepseated
favouritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial that
are critical or disapproving of, or even hostile to, counsel the
parties, or their cases, ordinarily do not support a bias or partiality
challenge. They do so if they reveal an opinion that derives
may
from an extrajudicial source; and they will do so if they reveal such
a high degree of favouritism or antagonism as to make fair
judgment impossible. An example of the latter (and perhaps of the
22
former as well) is the statement that was alleged to have been made
by the District Judge in Berger v. United States, 255 U.S. 22, 41
S.Ct.230, 65 L.Ed.481 (1921), a World War I espionage case against
GermanAmerican defendants; “One must have a very judicial mind,
indeed, not [to be] prejudiced against the German Americans”
because their “hearts are reeking with disloyality.” Id., at 28
(internal quotation marks omitted). Not establishing bias or
partiality, however, are expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed as
federal judges, sometimes display. A judge’s ordinary efforts at
courtroom administration – even a stern and shorttempered judge’s
ordinary efforts at courtroom administration – remain immune.
The term “extrajudicial source,” though not the interpretive doctrine
bearing its name, has appeared in only one of our previous cases.
United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct.1698, 16
L.Ed.2d 778 (1966). Respondents in Grinnell alleged that the trial
judge had a personal bias against them, and sought his
disqualification and a new trial under 28 U.S.C. § 144. That
statute, like § 455(b)(1), requires disqualification for “bias or
prejudice”. In denying respondents’ claim, the Court stated that
“[t]he alleged bias and prejudice to be disqualifying must stem from
an extrajudicial source and result in an opinion on the merits on
some basis other than what the judge learned from his participation
in the case.” 384 U.S., at 583, 86 S.Ct., at 1710.”
In (supra), it has been held that it is desirable to have
LITEKY
the same Judge in the successive causes. They have to be faithful to
oath. Following observation has been made:
“To take a common example, litigants (like petitioners here) often
seek disqualification based upon a judge’s prior participation, in a
judicial capacity, in some related litigation. Those allegations are
meritless in most instances, and their prompt rejection is important
so the case can proceed. Judges, if faithful to their oath, approach
every aspect of each case with a neutral and objective disposition.
They understand their duty to render decisions upon a proper
record and to disregard earlier judicial contacts with a case or
party.
Some may argue that a judge will feel the “motivation to vindicate a
prior conclusion” when confronted with a question for the second or
third time, for instance, upon trial after a remand. Ratner,
Disqualification of Judges for Prior Judicial Actions, 3 How.L.J.
228, 229230 (1957). Still, we accept the notion that the
“conscientious judge will, as far as possible, make himself aware of
his biases of this character, and, by that very selfknowledge, nullify
23
their effect.” In re J.P. Linahan, Inc., 138 F.2d 650, 652 (CA2 1943).
The acquired skill and capacity to disregard extraneous matters is
one of the requisites of judicial office. As a matter of sound
administration, moreover, it may be necessary and prudent to
permit judges to preside over successive causes involving the same
parties or issues. See Rules Governing Section 2255 Proceedings
for the United States District Courts, Rule 4(a) (“The original motion
shall be presented promptly to the judge of the district court who
presided at the movant’s trial and sentenced him, or, if the judge
who imposed sentence was not the trial judge, then it shall go to the
judge who was in charge of that part of the proceedings being
attacked by the movant”). The public character of the prior and
present proceedings tends to reinforce the resolve of the judge to
weigh with care the propriety of his or her decision to hear the case.
Out of this reconciliation of principle and practice comes the
recognition that a judge’s prior judicial experience and contacts
need not, and often do not, give rise to reasonable questions
concerning impartiality.”
(emphasis supplied)
25. In State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, this
Court has laid down that prejudging question of law, policy or
discretion, Judge is not disqualified to hear a case. It was held as
under:
“25. Bias may be defined as a preconceived opinion or a
predisposition or predetermination to decide a case or an issue in a
particular manner, so much so that such predisposition does not
leave the mind open to conviction. It is, in fact, a condition of mind,
which sways judgments and renders the judge unable to exercise
impartiality in a particular case.
Bias has many forms. It may be pecuniary bias, personal bias,
26.
bias as to subjectmatter in dispute, or policy bias etc. In the
instant case, we are not concerned with any of these forms of bias.
We have to deal, as we shall presently see, a new form of bias,
namely, bias on account of judicial obstinacy.
27. Judges, unfortunately, are not infallible. As human beings, they
can commit mistakes even in the best of their judgments reflective
of their hard labour, impartial things and objective assessment of
the problem put before them. In the matter of interpretation of
statutory provisions or while assessing the evidence in a particular
case or deciding questions of law or facts, mistakes may be
committed bona fide which are corrected at the appellate stage. This
explains the philosophy behind the hierarchy of courts. Such a
24
mistake can be committed even by a judge of the High Court which
are corrected in the letters patent appeal, if available.
28. If a judgment is overruled by the higher court, the judicial
discipline requires that the judge whose judgment is overruled must
submit to that judgment. He cannot, in the same proceedings or in
collateral proceedings between the same parties, rewrite the
overruled judgment. Even if it was a decision on a pure question of
law which came to be overruled, it cannot be reiterated in the same
proceedings at the subsequent stage by reason of the fact that the
judgment of the higher court which has overruled that judgment,
not only binds the parties to the proceedings but also the judge who
had earlier rendered that decision. That judge may have his
occasion to reiterate his dogmatic views on a particular question of
common law or constitutional law in some other case but not in the
same case. If it is done, it would be exhibitive of his bias in his own
favour to satisfy his egoistic judicial obstinacy.
As pointed out earlier, an essential requirement of judicial
29.
adjudication is that the judge is impartial and neutral and is in a
position to apply his mind objectively to the facts of the case put up
before him. If he is predisposed or suffers from prejudices or has a
biased mind, he disqualifies himself from acting as a judge. But
Frank, J. of the United States in Linahan, In re, 138 F 2d 650 says:
“If, however, ‘bias’ and ‘partiality’ be defined to mean the total
absence of preconceptions in the mind of the judge, then no one
has ever had a fair trial and no one will. The human mind, even
at infancy, is no blank piece of paper. We are born with
predispositions…. Much harm is done by the myth that, merely
by … taking the oath of office as a judge, a man ceases to be
human and strips himself of all predilections, becomes a
passionless thinking machine.”
[See also Griffith and Street, Principles of Administrative Law
(1973 Edn.), p. 155; Judicial Review of Administrative Action by de
Smith (1980 Edn.), p. 272; II Administrative Law Treatise by Davis
(1958 Edn.), p. 130.]
30. These remarks imply a distinction between prejudging of facts
specifically relating to a party, as against preconceptions or
predispositions about general questions of law, policy or discretion.
The implication is that though in the former case, a judge would
disqualify himself, in the latter case, he may not. But this question
does not arise here and is left as it is.”
(emphasis supplied)
26. In Asok Pande v. Supreme Court of India, (2018) 5 SCC 341,
question of allocation of work and roster of Benches came up for
consideration. The Court has laid down that Chief Justice has to
25
consider specialization of each Judge and other factors. The Court
observed:
“10. Recently, a Constitution Bench of this Court in Campaign for
Judicial Accountability and Reforms v. Union of India , (2018) 1 SCC
196, held that the principle which was noticed and recognised in
the decision of this Court in State of Rajasthan v. Prakash Chand ,
(1998) 1 SCC 1, in relation to the jurisdiction and authority of the
Chief Justice of the High Court “must apply proprio vigore as
regards the power of the Chief Justice of India”. The position of the
Chief Justice was reiterated with the following observations: (SCC
pp. 199200, paras 7 & 8)
“ 7 . The aforesaid position though stated as regards the High
Court, we are absolutely certain that the said principle is
applicable to the Supreme Court. We are disposed to think so.
Unless such a position is clearly stated, there will be utter
confusion. Be it noted, this has been also the convention of this
Court, and the convention has been so because of the law. We
have to make it clear without any kind of hesitation that the
convention is followed because of the principles of law and
because of judicial discipline and decorum. Once the Chief
Justice is stated to be the Master of the Roster, he alone has the
prerogative to constitute Benches. Needless to say, neither a
twoJudge Bench nor a threeJudge Bench can allocate the
matter to themselves or direct the composition for constitution of
a Bench. To elaborate, there cannot be any direction to the Chief
Justice of India as to who shall be sitting on the Bench or who
shall take up the matter as that touches the composition of the
Bench. We reiterate such an order cannot be passed. It is not
countenanced in law and is not permissible.
8 . An institution has to function within certain parameters
and that is why there are precedents, rules and conventions. As
far as the composition of Benches is concerned, we accept the
principles stated in Prakash Chand , which were stated in the
context of the High Court, and clearly state that the same shall
squarely apply to the Supreme Court and there cannot be any
kind of command or order directing the Chief Justice of India to
constitute a particular Bench.”
Quite apart from the fact that the relief sought is contrary to
12.
legal and constitutional principle, there is a fundamental fallacy in
the approach of the petitioner, which must be set at rest. The
petitioner seeks the establishment of a binding precept under which
a threeJudge Bench in the Court of the Chief Justice must consist
of the Chief Justice and his two seniormost colleagues alone while
the Constitution Bench should consist of five seniormost Judges (or,
as he suggests, three “seniormost” and two “juniormost” Judges).
There is no constitutional foundation on the basis of which such a
suggestion can be accepted. For one thing, as we have noticed
earlier, this would intrude into the exclusive duty and authority of
26
the Chief Justice to constitute Benches and to allocate cases to
them. Moreover, the petitioner seems to harbour a misconception
that certain categories of cases or certain courts must consist only
of the seniormost Judges in terms of appointment. Every Judge
appointed to this Court under Article 124 of the Constitution is
invested with the equal duty of adjudicating cases which come to
the Court and are assigned by the Chief Justice. Seniority in terms
of appointment has no bearing on which cases a Judge should hear.
It is a settled position that a judgment delivered by a Judge speaks
for the Court (except in the case of a concurring or dissenting
opinion). The Constitution makes a stipulation in Article 124(3) for
the appointment of Judges of the Supreme Court from the High
Courts, from the Bar and from amongst distinguished jurists.
Appointment to the Supreme Court is conditioned upon the
fulfilment of the qualifications prescribed for the holding of that
office under Article 124(3). Once appointed, every Judge of the
Court is entitled to and in fact, dutybound, to hear such cases as
are assigned by the Chief Justice. Judges drawn from the High
Courts are appointed to this Court after long years of service.
Members of the Bar who are elevated to this Court similarly are
possessed of wide and diverse experience gathered during the
course of the years of practice at the Bar. To suggest that any Judge
would be more capable of deciding particular cases or that certain
categories of cases should be assigned only to the seniormost
among the Judges of the Supreme Court has no foundation in
principle or precedent. To hold otherwise would be to cast a
reflection on the competence and ability of other Judges to deal with
all cases assigned by the Chief Justice notwithstanding the fact that
they have fulfilled the qualifications mandated by the Constitution
for appointment to the office.
14. The Chartered High Courts of Allahabad, Bombay, Calcutta and
Madras have a long history of over a hundred and fifty years. Each
of them has marked its sesquicentennial. Many High Courts are not
far behind in vintage. Some are of a recent origin. Over the course of
their judicial history, High Courts have evolved conventions in
matters governing practice and procedure. These conventions
provide guidance to the Chief Justice in the allocation of work,
including in the constitution of Benches. The High Courts
periodically publish a roster of work under the authority of the
Chief Justice. The roster indicates the constitution of Benches,
Division and Single. The roster will indicate the subjectmatter of
the cases assigned to each Bench. Different High Courts have their
own traditions in regard to the period for which the published roster
will continue, until a fresh roster is notified. Individual Judges have
their own strengths in terms of specialisation. The Chief Justice of
the High Court has to bear in mind the area of specialisation of
each Judge, while deciding upon the allocation of work. However,
specialisation is one of several aspects which weigh with the Chief
Justice. A newly appointed Judge may be rotated in a variety of
assignments to enable the Judge to acquire expertise in diverse
branches of law. Together with the need for specialisation, there is a
27
need for Judges to have a broadbased understanding of diverse
areas of law. In deciding upon the allocation of work and the
constitution of Benches, Chief Justices have to determine the
number of Benches which need to be assigned to a particular
subjectmatter keeping in view the inflow of work and arrears. The
Chief Justice of the High Court will have regard to factors such as
the pendency of cases in a given area, the need to dispose of the
oldest cases, prioritising criminal cases where the liberty of the
subject is involved and the overall strength, in terms of numbers, of
the Court. Different High Courts have assigned priorities to certain
categories of cases such as those involving senior citizens, convicts
who are in jail and women litigants. These priorities are considered
while preparing the roster. Impending retirements have to be borne
in mind since the assignment given to a Judge who is due to demit
office would have to be entrusted to another Bench when the
vacancy arises. These are some of the considerations which are
borne in mind. The Chief Justice is guided by the need to ensure
the orderly functioning of the Court and the expeditious disposal of
cases. The publication of the roster on the websites of the High
Courts provides notice to litigants and lawyers about the
distribution of judicial work under the authority of the Chief
Justice. This Court was constituted in 1950. In the preparation of
the roster and in the distribution of judicial work, some of the
conventions which are adopted in the High Courts are also relevant,
subject to modifications having regard to institutional requirements.
15. Underlying the submission that the constitution of Benches and
the allocation of cases by the Chief Justice must be regulated by a
procedure cast in iron is the apprehension that absent such a
procedure the power will be exercised arbitrarily. In his capacity as
a Judge, the Chief Justice is primus inter pares : the first among
equals. In the discharge of his other functions, the Chief Justice of
India occupies a position which is sui generis. Article 124(1)
postulates that the Supreme Court of India shall consist of a Chief
Justice of India and other Judges. Article 146 reaffirms the position
of the Chief Justice of India as the head of the institution. From an
institutional perspective the Chief Justice is placed at the helm of
the Supreme Court. In the allocation of cases and the constitution
of Benches the Chief Justice has an exclusive prerogative. As a
repository of constitutional trust, the Chief Justice is an institution
in himself. The authority which is conferred upon the Chief Justice,
it must be remembered, is vested in a high constitutional
functionary. The authority is entrusted to the Chief Justice because
such an entrustment of functions is necessary for the efficient
transaction of the administrative and judicial work of the Court. The
ultimate purpose behind the entrustment of authority to the Chief
Justice is to ensure that the Supreme Court is able to fulfil and
discharge the constitutional obligations which govern and provide
the rationale for its existence. The entrustment of functions to the
Chief Justice as the head of the institution, is with the purpose of
securing the position of the Supreme Court as an independent
safeguard for the preservation of personal liberty. There cannot be a
28
presumption of mistrust. The oath of office demands nothing less.”
(emphasis supplied)
Thus, 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.
27. There may not be even one Judge in this Court who has not
taken a view one way or the other concerning Section 24 of the Act of
2013, either in this Court or in the High Court. If the submission is
accepted, no Judge will have the power to decide such a matter on the
judicial side. We have to deal with the cases every day in which
similar or somewhat different questions are involved concerning the
same provision. For having taken a view once, if recusal is to be
made, it would be very difficult to get a Judge to hear and decide a
question of law. We have to correct the decision, apply the law,
independently interpret the provisions as per the fact situation of the
case which may not be germane in the earlier matter. A judgment is
not a haltingplace, 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
29
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 this Court to include the same Judge/Judges in larger
Benches. Shri Mohan Parasaran, learned senior counsel has referred
to Rule 8 of Delhi High Court Rules contained in Chapter 3; Part C
which reads as under:
“8.
Judge or Judges who refer a case shall ordinarily sit on
the bench which considers the reference – The Judges or a
Bench by whom any question or case is referred shall
ordinarily be members of the Division Bench or Full Bench, as
the case may be appointed to consider such question or case.”
The rule provides that a Judge who referred a case has to sit on
the larger Bench to consider the reference. In the present case also,
the reference has been made by me and my recusal has been sought.
Thus, based on the consistent practice, we find that no ground for
recusal is made out.
28. Recusal has been prayed for on the ground of legal pre
disposition. Where recusal is sought on the ground, 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. No litigant can choose, who should be on the
Bench. He cannot say that a Judge who might have decided a case on
30
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. A litigant has got the
right to make arguments which suit his cause before a Judge/Judges
having taken a contrary view earlier. Moreover, 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. 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
31
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 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.
29. The question that comes to the mind is whether one of us should
recuse in order to prevent the embarrassment caused to a Judge by a
member of the Bar, by seeking his recusal. Recusal would be the
easiest way to solve it. On the other hand, a larger question arises. 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.
30. 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
32
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. The question which arises is
whether merely delivering a judgment of which correctness is to be
examined, would disqualifying a Judge from being part of the larger
Bench. The answer to the question has to be in the negative as there
is a consistent practice of this Court which has evolved that the
Judges who have rendered a decision earlier in smaller combination,
have also formed part of the larger Bench, and there are umpteen
occasions as mentioned above when Judges have overruled their own
view. In (supra), the United States Supreme Court has held
LITEKY
that rather it may be advantageous to have them on a Bench hearing
the matter as judgments are rendered after hearing the arguments of
learned counsel for the parties. There is always a scope to further
develop the law and to correct the errors, and this can better be done
by having Judges on the Bench, who have earlier rendered judgments
with respect to the subjectmatter to which of the parties the view
taken suits is not relevant.
31. If requests for recusal are acceded to for the asking, litigants will
be unscrupulously taking over the roster making powers of the Chief
33
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. Any recusal in the
circumstances is ruled out, such prayer strengthens the stern
determination not to succumb to any such pressure and not to recuse
on the ground on which recusal sought because for any reason, such
a prayer is permitted, even once, it would tantamount to cowardice
and give room to big and mighty to destroy the very judicial system.
Moreover, recusal in such unjustified circumstances, would become
the norm.
32. It was vehemently urged by learned senior counsel on behalf of
the respondents that they may feel embarrassed in arguing a
proposition of law which has been dealt with in the Indore
Development Authority elaborately. We find that given that arguments
on recusal, spilling for over a day, could be made vociferously, in a
belligerent fashion and with utmost ability, the submission that the
learned counsel would feel diffident in arguing a proposition of law on
merits, is difficult to accept. We feel that there is no dearth of talent
in this Court to argue a matter most effectively even against the tide.
The lawyers have compelled this Court time and again to change its
34
views and to refine the law. This Court is known for not a particular
view but for refining the law and that has been done with the help,
ability and legal ingenuity of the lawyers to convince this Court with
aplomb to correct its view. That is how the process goes on as the
entire system exists for the people of this country. Under the guise of
that, a reasonable man should not have even an iota of doubt as to the
impartiality of the Tribunal. 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 aforesaid guise; there is no
cause for any apprehension. There is no room to entertain the same.
The plea cannot be termed anything other than Bench hunting, if it is
said that until and unless the one which suits a litigant is found the
matters are not to be argued.
33. It also passes comprehension whether in a Constitution Bench,
consisting of five Judges, prayer for recusal of a Judge who has taken
a particular view earlier, is justified? The Bench consists of five
Judges. Each Judge may have his own view. They would not succumb
to a view held by one of the judges. They may also have their own view
in the matter. Are they also to be disqualified? In case the petitioner's
prayer is to be allowed, then they may want a Bench of 5:0 in their
favour or 4 in favour and 1 against or 3 in favour and 2 against. That
35
is not how the system can survive. The very idea of seeking recusal is
inconceivable and wholly unjustified, and the prayer cannot be
acceded to.
34. The decision in Supreme Court AdvocatesonRecord Association
& Anr. v. Union of India (recusal matter), (2016) 5 SCC 808, has been
referred to. Recusal of Justice Khehar (as His Lordship then was) was
sought from the Constitution Bench. The principles have been
summarised by this Court. The first principle which this Court has
discussed is the impartiality of a Judge. It has been observed by
Justice Chelameswar that the first principle is that the Judge should
be impartial. Merely having a legal opinion has no connection with
impartiality. It may be within the purview of the legal correctness of
the opinion. The second test is Latin maxim nemo judex in re sua i.e.,
no man shall be a Judge in his own cause. A judgment rendered by a
Judge is not in his own cause. Grant Hammond, a former Judge of the
Court of Appeal of New Zealand has in his book ‘Judicial Recusal’,
which has been referred to, observed that English Common Law on
recusal was both simple and highly constrained; a Judge could only
be disqualified for a direct pecuniary interest or consanguinity,
affinity, friendship or enmity with a party or because he was or had
been a party’s advocate. The Court has discussed the matter thus:
36
Grant Hammond, a former Judge of the Court of Appeal of New
“12.
Zealand and an academician, in his book titled Judicial Recusal
traced out principles on the law of recusal as developed in England in
the following words:
“The central feature of the early English common law on
recusal was both simple and highly constrained: a Judge
could only be disqualified for a direct pecuniary interest. What
would today be termed ‘bias’, which is easily the most
controversial ground for disqualification, was entirely rejected
as a ground for recusal of Judges, although it was not
completely dismissed in relation to jurors.
This was in marked contrast to the relatively sophisticated
canon law, which provided for recusal if a Judge was
suspected of partiality because of consanguinity, affinity,
friendship or enmity with a party, or because of his
subordinate status towards a party or because he was or had
been a party’s advocate.”
He also pointed out that in contrast in the United States of America,
the subject is covered by legislation.
13. Dimes v. Grand Junction Canal , (1852) 3 HLC 759, is one of the
earliest cases where the question of disqualification of a Judge was
considered. The ground was that he had some pecuniary interest in
the matter. We are not concerned with the details of the dispute
between the parties to the case. Lord Chancellor Cottenham heard
the appeal against an order of the ViceChancellor and confirmed the
order. The order went in favour of the defendant Company. A year
later, Dimes discovered that Lord Chancellor Cottenham had shares
in the defendant Company. He petitioned the Queen for her
intervention. The litigation had a long and chequered history, the
details of which are not material for us. Eventually, the matter
reached the House of Lords. The House dismissed the appeal of
Dimes on the ground that setting aside of the order of the Lord
Chancellor would still leave the order of the ViceChancellor intact as
Lord Chancellor had merely affirmed the order of the Vice
Chancellor. However, the House of Lords held that participation of
Lord Cottenham in the adjudicatory process was not justified.
Though Lord Campbell observed: ( Dimes case , ER p. 315)
“… No one can suppose that Lord Cottenham could be, in the
remotest degree, influenced by the interest he had in this
concern: but, my Lords, it is of the last importance that the
maxim that no man is to be a Judge in his own cause should
be held sacred. And that is not to be confined to a cause in
which he is a party, but applies to a cause in which he has an
interest. … This will be a lesson to all inferior tribunals to take
care not only that in their decrees they are not influenced by
their personal interest, but to avoid the appearance of
labouring under such an influence.”
37
Summing up the principle laid down by the abovementioned
14.
case, Hammond observed as follows:
“The ‘nopecuniary interest’ principle as expressed in Dimes
requires a judge to be automatically disqualified when there is
neither actual bias nor even an apprehension of bias on the
part of that judge. The fundamental philosophical
underpinning of Dimes is therefore predicated on a conflict of
interest approach.”
15. The next landmark case on the question of “bias” is R. v. Gough,
1993 AC 646. Gough was convicted for an offence of conspiracy to
rob and was sentenced to imprisonment for fifteen years by the trial
court. It was a trial by Jury. After the conviction was announced, it
was brought to the notice of the trial court that one of the jurors was
a neighbour of the convict. The convict appealed to the Court of
Appeal unsuccessfully. One of the grounds on which the conviction
was challenged was that, in view of the fact that one of the jurors
being a neighbour of the convict presented a possibility of bias on her
part and therefore the conviction is unsustainable. The Court of
Appeal noticed that there are two lines of authority propounding two
different tests for determining disqualification of a Judge on the
ground of bias:
( 1 ) “real danger” test; and
( 2 ) “reasonable suspicion” test.
The Court of Appeal confirmed the conviction by applying the “real
danger” test.
16. The matter was carried further to the House of Lords. Lord Goff
noticed that there are a series of authorities which are “not only large
in number but bewildering in their effect”. After analysing the
judgment in Dimes , Lord Goff held: ( Gough case , AC p. 661 FG)
“In such a case, therefore, not only is it irrelevant that there
was in fact no bias on the part of the tribunal, but there is no
question of investigating, from an objective point of view,
whether there was any real likelihood of bias, or any
reasonable suspicion of bias, on the facts of the particular
case. The nature of the interest is such that public confidence
in the administration of justice requires that the decision
should not stand.”
In other words, where a Judge has a pecuniary interest, no further
inquiry as to whether there was a “real danger” or “reasonable
suspicion” of bias is required to be undertaken. But in other cases,
such an inquiry is required and the relevant test is the “real danger”
test: ( Gough case , AC pp. 661 GH662 AB)
“… But [in other cases], the inquiry is directed to the question
whether there was such a degree of possibility of bias on the
part of the tribunal that the court will not allow the decision to
stand. Such a question may arise in a wide variety of
circumstances. These include … cases in which the member of
the tribunal has an interest in the outcome of the proceedings,
which falls short of a direct pecuniary interest. Such interests
38
may vary widely in their nature, in their effect, and in their
relevance to the subjectmatter of the proceedings; and there
is no rule … that the possession of such an interest
automatically disqualifies the member of the tribunal from
sitting. Each case falls to be considered on its own facts.”
17. The learned Judge examined various important cases on the
subject and finally concluded: ( Gough case , AC p. 670 EG)
“… Finally, for the avoidance of doubt, I prefer to state the test
in terms of real danger rather than real likelihood, to ensure
that the court is thinking in terms of possibility rather than
probability of bias. Accordingly, having ascertained the
relevant circumstances, the court should ask itself whether,
having regard to those circumstances, there was a real danger
of bias on the part of the relevant member of the tribunal in
question, in the sense that he might unfairly regard (or have
unfairly regarded) with favour, or disfavour, the case of a party
to the issue under consideration by him….”
18. Lord Woolf agreed with Lord Goff in his separate judgment. He
held: ( Gough case , AC p. 673 FG)
“… There is only one established special category and that
exists where the tribunal has a pecuniary or proprietary
interest in the subjectmatter of the proceedings as in Dimes v.
Grand Junction Canal . The courts should hesitate long before
creating any other special category since this will immediately
create uncertainty as to what are the parameters of that
category and what is the test to be applied in the case of that
category. The real danger test is quite capable of producing the
right answer and ensure that the purity of justice is
maintained across the range of situations where bias may
exist.”
19. In substance, the Court held that in cases where the Judge has a
pecuniary interest in the outcome of the proceedings, his
disqualification is automatic. No further enquiry whether such an
interest lead to a “real danger” or gave rise to a “reasonable
suspicion” is necessary. In cases of other interest, the test to
determine whether the Judge is disqualified to hear the case is the
“real danger” test.
20. The R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p
Pinochet Ugarte (No.2), (2000) 1 AC 119 , added one more category to
the cases of automatic disqualification for a Judge. Pinochet, a
former Chilean dictator, was sought to be arrested and extradited
from England for his conduct during his incumbency in office. The
issue was whether Pinochet was entitled to immunity from such
arrest or extradition. Amnesty International, a charitable
organisation, participated in the said proceedings with the leave of
the Court. The House of Lords held that Pinochet did not enjoy any
such immunity. Subsequently, it came to light that Lord Hoffman,
39
one of the members of the Board which heard Pinochet case , was a
Director and Chairman of a company (known as AICL) which was
closely linked with Amnesty International. An application was made
to the House of Lords to set aside the earlier judgment on the ground
of bias on the part of Lord Hoffman.
The House of Lords examined the following questions:
21.
( i ) Whether the connection of Lord Hoffman with Amnesty
International required him to be automatically disqualified?
( ) Whether an enquiry into the question whether cause of Lord
ii
Hoffman’s connection with Amnesty International posed a real
danger or caused a reasonable apprehension that his judgment is
biased — is necessary?
( iii ) Did it make any difference that Lord Hoffman was only a member
of a company associated with Amnesty International which was in
fact interested in securing the extradition of Senator Pinochet?
22. Lord Wilkinson summarised the principles on which a Judge is
disqualified to hear a case. As per Lord Wilkinson: ( Pinochet case , AC
pp. 132 GH133 AC)
“The fundamental principle is that a man may not be a Judge
in his own cause. This principle, as developed by the courts,
has two very similar but not identical implications. First it
may be applied literally: if a Judge is in fact a party to the
litigation or has a financial or proprietary interest in its
outcome then he is indeed sitting as a Judge in his own cause.
In that case, the mere fact that he is a party to the action or
has a financial or proprietary interest in its outcome is
sufficient to cause his automatic disqualification. The second
application of the principle is where a Judge is not a party to
the suit and does not have a financial interest in its outcome,
but in some other way his conduct or behaviour may give rise
to a suspicion that he is not impartial, for example because of
his friendship with a party. This second type of case is not
strictly speaking an application of the principle that a man
must not be Judge in his own cause, since the Judge will not
normally be himself benefiting, but providing a benefit for
another by failing to be impartial.
In my judgment, this case falls within the first category
of case, viz. where the Judge is disqualified because he is a
Judge in his own cause. In such a case, once it is shown that
the Judge is himself a party to the cause, or has a relevant
interest in its subjectmatter, he is disqualified without any
investigation into whether there was a likelihood or suspicion
of bias. The mere fact of his interest is sufficient to disqualify
him unless he has made sufficient disclosure….”
And framed the question: (AC p. 134BC)
“… the question then arises whether, in nonfinancial
litigation, anything other than a financial or proprietary
40
interest in the outcome is sufficient automatically to disqualify
a man from sitting as Judge in the cause.”
(emphasis supplied)
He opined that although the earlier cases have
“all dealt with automatic disqualification on the grounds of
pecuniary interest, there is no good reason in principle for so
limiting automatic disqualification”. (AC p. 135B)
23. Lord Wilkinson concluded that Amnesty International and its
associate company known as AICL, had a nonpecuniary interest
established that Senator Pinochet was not immune from the process
of extradition. He concluded that: ( Pinochet case , AC p. 135CD)
“… 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. 132H133A)
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 EF)
“… 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) v.
Judges Inquiry Committee, (2011) 8 SCC 380
25. From the above decisions, in our opinion, the following principles
emerge:
If a Judge has a financial interest in the outcome of a case, he
25.1.
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
disqualifies the Judge tested in the light of either on the principle 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
41
interested in a cause which is being promoted by one of the parties to
the case.
It is nobody’s case that, in the case at hand, Justice Khehar had
26.
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
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 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
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.
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 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 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 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.”
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.
42
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 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
should have been a disqualification for Anil R. Dave, J. as well.
When he commenced hearing of the matters, and till 742015, 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 proof.
One wonders, why did he not seek the recusal of Anil R. 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 prevails. That however
is the position with reference to four of us (on the instant fiveJudge
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 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
43
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:
In my respectful opinion, when an application is made for the
“60.
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.
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.”
It has been held that decision to recuse is that of the Judge
concerned, and unjustified pressure should never be allowed.
35. Shri Tushar Mehta, learned Solicitor General, has relied upon
the decision in Subrata Roy Sahara v. Union of India & Ors., (2014) 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.
44
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 432014
was found to be partly or fully unjustified, was totally misplaced.”
36. 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
observed that the path of recusal is very often a convenient and a soft
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. 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:
45
“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 browbeating 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
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 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 .”
(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 benchhunting or
benchhopping (or should we say, benchavoiding), 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.
We shall now deal with the substance, and the import, of the
131.
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
46
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 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.
Dr. Rajeev Dhavan, learned Senior Counsel also accused us of
135.
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 3182012 the only gainer on the
other side is the Government of India. The eighth direction of our
order dated 3182012, 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)
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.
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
47
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.”
37. 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.”
38. 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 decisionmaking 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 ignore such
aspects on the unfounded allegations and materials. 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
48
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. 31820, paras 146155)
“ 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
Allahabad High Court for relief resulting in the impugned
judgment and order dated 332004. 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.
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 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
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
49
that to allow the assumption of jurisdiction in created
circumstances would only result in encouraging forum
shopping.
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 respondentplaintiff had made a deliberate
attempt to bring the cause of action, namely, a collision between
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.
151 . Another form of forum shopping is taking advantage of 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. 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 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
petitioners for others with a view to confer jurisdiction on a
50
particular court would also amount to forum shopping by that
group of petitioners.
. Finally and more recently, in
154 Supreme Court Advocates
onRecord Assn. v. Union of India ( Recusal Matter ), (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.
155 . The decisions referred to clearly lay down the principle
that the Court is required to adopt a functional test visàvis 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 a litigant is indulging in forum shopping or not.”
39. 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:
“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
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.”
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
system of administration of justice by vilification of Judges. It
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.”
14. In Jennison v. Baker , (1972) 2 QB 52, All ER p. 1006 d , it was
observed: (QB p. 66 H)
51
“… ‘The law should not be seen to sit by limply, while those
who defy it go free, and those who seek its protection lose
hope.’”
40. The decision in All India Institute of Medical Sciences v. Prof.
Kaushal K. Verma , (2015) 220 DLT 446 (W.P. [C] No.4103/2014),
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 selfvindication, 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 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 predisposition to decide in
a particular manner.”
There is a concurring opinion thus:
52
“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
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.”
41. 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 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.
42. 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 predisposition as to the
legal issue or as to the relief to be granted, such an apprehension also
53
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.
43. 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
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
54
principle, or provisions. The previous decisions and practice of this
court have clearly shown 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.
44. 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. 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
justice or discharge of duty as a Judge and judicial decisionmaking.
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 the Bench/es in the future. I have taken an informed
decision after considering the nittygritty 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
55
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.
……………………..J.
(Arun Mishra)
NEW DELHI;
OCTOBER 23, 2019.
56
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO.9036-9038 OF 2016
INDORE DEVELOPMENT AUTHORITY ...PETITIONER
VS.
MANOHARLAL AND ORS. ETC. ...RESPONDENTS
WITH
[C.A.NO.19532-19533/2017, SLP (C) NO.9798-9799/2016,
SLP (C) NO.17088-17089/2016, SLP (C) NO. 37375/2016,
SLP (C) NO.37372/2016, SLP (C) NO.16573-16605/2016,
SLP (C)...CC NO.15967/2016, C.A.NO.19356/2017,
C.A.NO.19362/2017, C.A.NO.19361/2017, C.A.NO.
19358/2017, C.A.NO.19357/2017, C.A.NO. 19360/2017,
C.A. NO.19359/2017, SLP(C) NO. 34752-34753/2016, SLP
(C) NO.15890/2017, C.A.NO.19363/2017,
C.A.NO.19364/2017, C.A.NO.19412/2017, MA
NO.1423/2017 IN C.A. NO. 12247/2016, SLP (C)
NO.33022/2017, SLP (C) NO.33127/2017, SLP (C) NO.
33114/2017, MA NO.1787/2017 IN C.A.NO. 10210/2016, MA
NO.1786/2017 IN C.A.NO.10207/2016, MA NO.45/2018 IN
C.A.NO.6239/2017, SLP (C) NO.16051/2019, DIARY
NO.23842/2018 & SLP (C) NO. 30452/2018, CA
NO.4835/2015 & SLP (C) NO.30577-30580/2015]
57
O R D E R
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 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
58
Court as a whole and it is the responsibility of
each justice to determine for himself the
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:
‘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, 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
59
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 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 before us. That reasons are presently
being given is a different matter altogether.
Secondly, the giving of reasons is fraught 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 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.”
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
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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.
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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.
........................................J.
[INDIRA BANERJEE]
........................................J.
[VINEET SARAN]
........................................J.
[M.R. SHAH]
........................................J.
[S. RAVINDRA BHAT]
New Delhi,
October 23, 2019.
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