India Today - - INSIDE - FAIZAN MUSTAFA The au­thor is an ex­pert in Con­sti­tu­tional law and ViceChan­cel­lor of the NALSAR Univer­sity of Law, Hy­der­abad

Per­cep­tion has a huge role in ju­di­cial ad­ju­di­ca­tion. Peo­ple’s per­cep­tion of the in­de­pen­dence of our judges from the gov­ern­ment of the day is cru­cial to the cred­i­bil­ity and le­git­i­macy of our con­sti­tu­tional courts. In a lec­ture de­liv­ered at a media event on July 12, 2018, Chief Jus­tice of In­dia (CJI) Ran­jan Go­goi rightly said “noisy judges” were a democ­racy’s first line of de­fence and that judges should be “fiercely in­de­pen­dent”. He went on to say that “civil lib­er­ties have noth­ing to fear from the Ju­di­ciary alone, [but] they [do] have to fear ev­ery­thing from [a] union of [the] Ju­di­ciary with ei­ther of other two branches [of the State].” In­deed. Even a re­mote pos­si­bil­ity of such a union is fright­en­ing.

As many as five judges, in­clud­ing the CJI, have, in three sep­a­rate in­stances since Septem­ber 30, re­cused them­selves from hear­ing civil lib­er­ties and hu­man rights ac­tivist Gau­tam Navlakha’s plea in the Bhima-Kore­gaon case. The case came up be­fore the Supreme Court af­ter a Bom­bay High Court or­der re­jected Navlakha’s plea to quash the FIR against him for his al­leged links with Maoists and the 2018 vi­o­lence in Bhima-Kore­gaon, Ma­ha­rash­tra. It’s an open se­cret that this gov­ern­ment is un­happy with ‘noisy’ civil lib­er­tar­i­ans and dis­sent­ing in­tel­lec­tu­als. It fre­quently con­demns them as “Ur­ban Nax­als” and will likely not take kindly to any ju­di­cial or­der in their favour. But if our judges have even the slight­est mis­ap­pre­hen­sion about an ad­verse gov­ern­ment re­ac­tion to their judg­ments, it is re­ally wor­ri­some, for it will mean the demise of ju­di­cial in­de­pen­dence and con­sti­tu­tion­al­ism.

Ide­ally, a judge may re­cuse him­self from a pro­ceed­ing if his im­par­tial­ity may rea­son­ably be ques­tioned, where the pos­si­bil­ity ex­ists of: a personal bias or prej­u­dice con­cern­ing a party to the dis­pute; or of personal knowl­edge of a dis­puted fact; or where he has been a lawyer or judge in the mat­ter at some stage. A judge of­ten comes to know of a con­flict of in­ter­est when there is a re­quest for re­cusal. No such re­quest was made in Navlakha’s case. While a judge is sup­posed to fol­low the dic­tates of his con­science in choos­ing to re­cuse him­self, he should ide­ally spec­ify rea­sons. The CJI, in this case, pre­sum­ably re­cused him­self to fo­cus on the Ay­o­d­hya hear­ings, but then he is also the ‘Master of the Rolls’—why was the case listed be­fore him in the first place?

On the other hand, on May 2, 2019, in the As­sam De­ten­tion Cen­tre case, CJI Go­goi chose not to re­cuse him­self—re­ject­ing civil rights ac­tivist Harsh Man­der’s ex­plicit re­quest—even though a re­cusal might have seemed more rea­son­able in this case, given that be­ing an Ahom from As­sam, he could pos­si­bly be seen to have a prej­u­di­cial in­ter­est in a cer­tain out­come of the NRC ex­er­cise. In­stead, the CJI ob­served: “…the in­abil­ity, dif­fi­culty or hand­i­cap of a judge to hear a par­tic­u­lar mat­ter is to be per­ceived by the judge him­self and no one else.” A more ten­able po­si­tion on recusals was ar­tic­u­lated by former CJI M.N. Venkat­achaliah in Ran­jit Thakur, 1987. He said: “As to the tests of like­li­hood of bias, what is rel­e­vant is the rea­son­able­ness of the ap­pre­hen­sion in that re­gard in the mind of the party. The proper ap­proach for the judge is not to look at his own mind and ask him­self, how­ever hon­estly, ‘am I bi­ased’ but to look to the mind of the party be­fore him.”

Did the judges ask this ques­tion of them­selves in the Navlakha case? We don’t know of any personal bi­ases/ prej­u­dices that might con­sti­tute rea­son­able grounds for the en masse recusals. En­light­ened cit­i­zens and ad­mir­ers of our Supreme Court, both at home and abroad, are also in shock at the court’s re­luc­tance to take up even habeas cor­pus pe­ti­tions (a le­gal re­course for cit­i­zens against de­ten­tions they wish to con­test) as also a Con­sti­tu­tion bench de­ci­sion to de­fer till Novem­ber 14 the hear­ing of pe­ti­tions chal­leng­ing the ab­ro­ga­tion of Jammu and Kash­mir’s spe­cial sta­tus. To these peo­ple, the most pow­er­ful court in the world is sud­denly look­ing timid and docile. For com­par­i­son, the Bri­tish Supreme Court was widely ap­pre­ci­ated for its prompt rul­ing against Prime Min­is­ter Boris John­son’s de­ci­sion to pro­rogue Par­lia­ment. One hopes our judges too will stand up to the new chal­lenges and, through their judg­ments, put to rest all ap­pre­hen­sions about their in­de­pen­dence. Af­ter all, they have taken oaths to ad­ju­di­cate with­out fear or favour. ■

We don’t know of any personal bi­ases that could be rea­son­able grounds for the en masse recusals in the Navlakha case

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