Justice Mishra’s Contentious Recusal Hearing Tomorrow

On October 23, the Supreme Court will deliver its verdict in an application seeking the recusal of Justice AK Mishra. Justice Mishra is currently sitting on a five-judge Constitutional bench that is hearing an appeal on the legality of a verdict that he himself had delivered. In the Indore Development Authority (2018) case, Justice Mishra, in a 2:1 majority verdict, rendered per incuriam a unanimous verdict in the Pune Municipal Corporation (2014) case by a bench of three judges.

The two cases are concerned with the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act). The section provides that where proceedings for land acquisition have been initiated, but either possession of the land was not taken or compensation was not paid to the land owner, then the concerned acquisition would be deemed to have lapsed.

The result of this provision is that such land would be returned to the land owners. This is a beneficial statute that was enacted by the legislature in order to deal with cases of landowners are deprived of their land, but where the proceedings were suspended and they did not got compensated.

In the Pune Municipal Corporation case (2014) the Supreme Court stated that compensation would only be considered paid when the payment has been made to the landowner(s) or when the amount due to them has been deposited with the court. “The deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested,” the bench comprising Justices RM Lodha, Madan B Lokur and Kurian Joseph had ruled.

Justice Mishra’s judgment in the Indore case held that the Pune judgment was per incuriam. That is, once compensation offered unconditionally was not accepted, it would be deemed to have been paid. Then the court held that even if the amount remained in the government treasury, it will be considered as having been paid to the landowner.

Justice Mohan M Shantanagoudar, sitting in the Indore case, disagreed with the decision of rendering the Pune judgement per incuriam. The argument is that a bench of three judges cannot render a decision delivered by a coordinate bench of the same strength per incuriam. This is particularly so when the judgment was, in effect, delivered two and not three judges—as Justice Shantanagoudar’s was a dissenting ruling.

Consequently, a bench of five judges was constituted to finally decide which of the two judgments is correct. Controversially, the larger bench includes Justice Mishra. He, in fact, is presiding over it. Therefore, unsurprisingly, the aggrieved landowners moved the court asking for Justice Mishra’s recusal.

The case was argued by Senior Advocate Shyam Divan, who represented some of the land owners. Pointing out the law on the issue Divan told the court the status of the law across the world, which unanimously states that a judge cannot sit in appeal in a matter where the validity of his own verdict will be tested. These include the rules of judicial procedure in the United States, the United Kingdom and the European Union.

While there is no statutory rule in India, the issue has been dealt with in several judgments of the Supreme Court. The court has reiterated time and again that: “The test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.”

Justice Mishra, in an impassioned statement, said that the recusal request is an attempt to malign the court and questions its integrity. He said that his integrity is unquestionable before god [and that] the court will not succumb to external forces. When an advocate rose to ask him what these forces are, there was no response and the court proceeded. Justice Mishra told Divan not to use the word “impartiality”, for the word “hurt” him. Divan continued his arguments, but now censored himself.

As the court was hearing the arguments, a judgement delivered on just the previous day by Justice Mishra was published. Justice Mishra, sitting on a three-judge bench of MR Shah and BR Gavai held that subsequent purchasers of land are entitled to no compensation. Unsurprisingly, there is a reasonable apprehension of bias that the final judgment is likely to go in a particular way.

The Supreme Court has held that [in] cases of judicial bias no proof [of] prejudice is required. The duty of the court is much higher. The court is obligated to discharge its functions “above suspicion of fairness and bias”.

When closing his arguments on the second day, Divan quoted a judgment delivered by the European Court of Human Rights and reminded the court of its constitutional duty: “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 any case, the court reserved its judgment last week and it is due to be delivered tomorrow.

Sugandha Yadav is a lawyer in Delhi. The views are personal.