To recuse or not to recuse

Written by Indu Bhan | Indu Bhan | Updated: May 22 2014, 01:49am hrs
The Supreme Court is witnessing a new alarming trend. Of late, it seems that parties are indulging in various pressure tactics to make tough judges withdraw from the cases where they think they would not get favourable orders. Coincidently, senior lawyers seem to be resorting to such practices when the senior judge on the bench is about to retire. Probably such an approach at that stage is likely to benefit their clients as the matter is heard almost afresh by a new bench. And the lawyers wont have to appear before the retiring judge any more.

Recusals have been there in the past, but only when the judges were informed about the significant orders passed in the high courts or if they had some affiliations with any of the parties in the matter. But now recusal due to psychological pressures seems to be the emerging trend. Generally judges dont succumb to such pressures, but then they are not superhumans.

The Sahara case is a classic example. Unable to bear the psychological pressure brought to bear on him by the Sahara counsel, Justice JS Khehar on May 6 recused himself from hearing not only the R20,000-crore refund case but all the Sahara cases that may even come up in the future before the apex court. The bench, which also had Justice KS Radhakrishnan (retired on May 14) as the presiding judge, had deprecated such calculated psychological offensives and mind games adopted to seek recusal of judges.

While seeking release of Roy, senior counsel Ram Jethmalani had told the bench that it would be embarrassing for him to canvass the submissions that would discomfort and embarrass the judges. Therefore, he suggested the bench to recuse itself as his client had apprehensions of prejudice. The judgment has put on record that Rajeev Dhavan, came out all guns blazing, in support of his colleague, by posing a query: Has the Court made a mistake, serious enough, giving rise to a presumption of bias It was difficult to understand what he meant. But seriously, in the manner Dhavan had addressed the court, it sounded like an insinuation. Jethmalani joined in to inform us, that the Bar (those sitting on the side he represented) was shell-shocked, that an order violating the petitioners rights under Article 21 of the Constitution of India, had been passed, and it did not seem to cause any concern to us Dhavan, then informed the court, that moments come in the profession, though rarely, when we tell the Judges of the SC, that you have committed a terrible mistake, by passing an order which has violated the civil liberties of our client that the order passed is void And moments later he said, it is a draconian order

The Constitutional expert and the human right activist had further accused the judges of having a pre-disposition in respect of the controversy. This predisposition, according to him (Dhavan), appeared to be on the basis of a strong commitment towards the other side (Sebi). This assertion was repeated several times during the hearing, Justice Khehar noted in his 207-page judgment, delivered few hours before recusal. But the two judges had refused to recuse themselves because they were well acquainted with the facts and twists of the case having heard it for months together and passed several orders.

Such an unusual trend became public for the first time when choked former judge Justice AR Lakshmanan on March 16, 2007, refused to hear a review petition of Uttar Pradesh chief minister Akhilesh Yadav in the disproportionate assets case.

Tears welling in his eyes, the emotional judge shocked the court when he said in the open court that he had received an anonymous letter levelling allegations against him. I am very much pained. The contents of the letter are so heinous that my wife and I are very disturbed, said the judge, who was due to retire in five days.

Couple of years later in January 2009, Jethmalani made Justice BN Agarwal (retired) to recuse from hearing the bail plea of real estate tycoons Sushil and Gopal Ansal in the Uphaar Cinema fire case after Jethmalani expressed reservations about the matter being placed before a bench that included him. The octogenarian lawyer had circulated a letter in the Supreme Court expressing his opposition about appearing before Agarwal against whom, he said, he had written articles in newspapers in a critical manner.

Justice GS Singhvi withdrew from the Nira Radia telephone leakage case, taking exception to the remarks made by Dhavan, who accused him of behaving arbitrarily and not hearing the media organisations that had published the tapes, despite the case being repeatedly listed.