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Updated on: Thursday, October 24, 2019, 09:27 PM IST

When recusals threaten judicial independence

Bhima Koregaon violence lead to protest in Mumbai | Photo by BL SONI

Bhima Koregaon violence lead to protest in Mumbai | Photo by BL SONI

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Five Supreme Court judges recused themselves in three separate instances since September 30 from hearing the plea of civil liberties and human rights activist, Gautam Navlakha’s petition to quash the FIR registered against him in the Bhima-Koregaon violence which led to two deaths. Recusal means the withdrawal of a judge from a case on the ground that he cannot discharge his constitutional duty in a certain case due to conflict of interest or lack of impartiality.

The Gautam Navlakha case came up before the Supreme Court after the Bombay High Court rejected Navlakha’s plea to quash the FIR against him which alleged he had links with the banned Maoists and the 2018 violence at Bhima-Koregaon in Maharashtra. But who organized the Elgaar Parishad event in Pune on December 31, 2017, the day before caste violence broke out at Bhima Koregaon nearby?

The Pune police claim the event was organized by the banned Communist Party of India (Maoist), with the aim of “spreading rebellious thoughts”, instigating violence at Bhima Koregaon and establishing a nationwide “anti-fascist front” to “wage war against the government established by law in India”. This is a very serious crime which carries life imprisonment or even death. After all, terrorist Ajmal Ali Kasab was hanged to death for waging war against the Indian government.

In all, ten activists were arrested, including Varavara Rao, Gautam Navlakha, Sudha Bharadwaj, Arun Ferreira and Vernon Gonsalves, who were arrested on August 28. Two retired judges, Justices B G Kolse-Patil who resigned from the Bombay High Court in 1990 to take up activism and Justice P B Sawant, who retired from the Supreme Court, openly declared they were the “main organizers and sole funders” of the Elgaar Parishad.

Since January, the Pune police raided the homes of several human rights activists and seized what they with their limited intelligence deemed to be “incriminating evidence” such as “War and Peace in Junglemahal” from the home of Vernon Gonsalves This prompted Bombay High Court judge Sarang Kotwal to stir up a furore when he asked Gonsalves why he kept preserved this book at home.

It is well-known that the BJP government is unhappy with noisy civil rights activists and dissenting intellectuals whom they condemn as “urban naxals.” Hence, the government which has vehemently opposed elevation of certain lawyers like Gopal Subramaniam and judges like K M Joseph to the Supreme Court, will not take too kindly to judgments quashing FIRs against activists like Gautam Navlakha.

But if our Supreme Court judges entertain even the slightest fear of adverse government reaction to their judgments, this means the death knell of judicial independence which perhaps, is now something of a chimera.

A judge is made aware of a conflict of interest when a party seeks a certain judge to recuse himself from deciding a case, as some farmers’ associations wanted Justice Arun Mishra to recuse himself from a Constitution bench to correct an alleged erroneous judgment which was signed by Justice Mishra himself. Justice Mishra refused to recuse himself.

But in Navlakha’s case no such request was ever made. No doubt, a judge must follow the dictates of his conscience when deciding whether to recuse himself or not. But he has to give his reasons for doing so. In Navlakha’s case, the CJI recused himself to focus on the Ayodhya hearings but on the other hand, on May 2, 2019, in the Assam Detention Centre case, the CJI chose not to recuse himself although a recusal may have seemed appropriate given that CJI Ranjan Gogoi is an Ahom from Assam. Hence, he may have been seen to have harboured a prejudicial interest in a certain outcome of the National Register of Citizens case.

The previous case where successive benches recused from hearing a matter was when the late Editor of Loksatta, Madhav Gadkari, was charged with contempt in the Bombay High Court in 1982 for publishing an example of a judge who wore hearing aids in court and removed them when he grew tired of hearing lengthy arguments. The second instance Gadkari referred to in his article held to be in contempt was of yet another judge who was alleged to have been bewitched by the charms of a woman lawyer and gave orders in her favour to such an extent that in appeal when he again ruled in her favour, her opponent allegedly remarked in open court that the judge had done so because of the woman advocate’s charms rather than on the merits of his arguments.

When a high court lawyer V M Kanade sought contempt action against Gadkari, the late criminal lawyer Ram Jethmalani told the high court his client was no novice journalist and would prove the veracity of every word. But successive benches recused from hearing the case until a bench led by the late Justice R A Jahagirdar declared “truth could not be pleaded as a defence against contempt” because this would expose the administration of justice to contempt and ridicule. This dictum blocked all reportage of alleged corruption in the judiciary for 16 years until Parliament amended the law.

But to return to the controversy on recusals, a former CJI M N Venkatachaliah declared in 1987 that : “as to the test 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 if he is biased but to look to the mind of the party before him.”

The reasons for these en masse recusals by five judges of the Supreme Court appear disturbing. The Constitution bench’s decision to defer till November 14 petitions challenging the abrogation of Jammu and Kashmir’s special status may not be linked to the judiciary’s avowed position of not interfering in executive policy but still make the apex court appear timid and docile before the executive. And that is bad for democracy.

The writer holds a Ph.D in Media law and is a journalist-cum-lawyer of the Bombay high court.

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Published on: Thursday, October 24, 2019, 09:27 PM IST
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