SSC case at Calcutta High Court shows why the trend of unexplained mass recusals in the higher courts needs to end
Unexplained recusals by judges lead to speculation and conjecture about the judge's possible conflict of interest or other potential motivations behind their decision. This may undermine public faith in the judiciary.
———-
LAST week saw several recusals of Division Benches of the Calcutta High Court in connection with the hearing of a batch of pleas concerning certain claimed irregularities in the recruitment of about 500 non-teaching staff by the West Bengal School Service Commission [SSC]. On Monday, the division bench of Justices Harish Tandon and Rabindranath Samanta, which was the regular bench hearing the matter, recused itself from further hearing the matter on "personal ground". Subsequently, upon an application for expeditious hearing of their appeal by one set of parties, the Calcutta High Court Chief Justice Prakash Srivastava listed the matter in the afternoon before a division bench composed of Justices T.S. Sivagnanam and Sabyasachi Bhattacharya. However, this bench, too, declined to hear the appeals, following which, they were assigned to a division bench of Justices Soumen Sen and A.K. Mukherjee. This bench declined to hear the appeals as well.
The case was notified to be heard by yet another division bench comprising Justices Joymalya Bagchi and Bivas Pattanayak on Tuesday. However, at the hearing, this bench, too, declined to hear the appeals, and placed the matters before the Chief Justice for reassignment. Finally, later on Tuesday, a fifth division bench of Justices Subrata Talukdar and Krishna Rao agreed to hear the matter, with the next date of hearing in one of the appeals fixed for tomorrow.
What is the SSC case about?
The entirety of the proceedings pertaining to the alleged scam in the recruitment of Group D staff to government schools in West Bengal has been marred by controversy, particularly surrounding inordinate delays in the proceedings and corruption allegations. The stumbling blocks in the process of litigation have largely been criticized by Justice Abhijit Gangopadhyay, whose orders seeking a probe into the matter by the Central Bureau of Investigation [CBI] have been stayed multiple times. Even prior to the recusals, the directions of Justice Gangopadhyay for a CBI probe to be initiated in the matter and for bringing transparency into the proceedings had been stayed by different division benches of the high court, prompting Justice Gangopadhyay to describe his hands as being tied, and referring to a particular order by a division bench of Justices Tandon and Samanta modifying one of his orders as "the highest degree of double standard". He had also urged the high court's Chief Justice as well as the Chief Justice of India to "look into the matter and probe the ongoing corruption" in the interest of natural justice. Further, he alleged that he had been approached by a lawyer on behalf of an influential politician to speak about these cases.
“Usually, judges recuse themselves from cases where they may be faced with conflict of interest. However, since there are no rules governing recusal, judges may choose not to recuse themselves in the face of such conflict of interest – even in the face of applications requesting their recusal by parties to the matter. Conversely, they may recuse themselves from particular matters, without giving any reasons for the same.
After this, yet another order of Justice Gangopadhyay was stayed – this time a direction for the West Bengal SSC's former Advisor S.P. Sinha to be called for questioning by the Regional Head of the CBI. This time, the order was stayed by a division bench comprising Justices Sen and Mukherjee, on grounds that the order should be stayed till the matter could be heard by the regular Division Bench, despite the fact that the regular Bench had upheld Justice Gangopadhyay's order directing S.P. Sinha to furnish certain property details to the Court. However, the Division Bench had agreed to accept in a 'sealed cover' an affidavit containing these property details, to which Justice Gangopadhyay had strongly expressed opposition.
Finally, the division bench of Justices Talukdar and Rao upheld Justice Gangopadhyay's orders for Sinha and former state education secretary A.K. Sarkar to be interrogated by the CBI, but modified the order to the extent that the CBI was barred from taking them into custody.
Have there been other instances of mass recusals in the higher courts?
While there have been several instances of judges recusing themselves from a matter, either on their own accord, or at the insistence of a party to the matter, for clear reasons, instances of mass recusals for unknown reasons are relatively rare, although not entirely uncommon.
On Tuesday, former Maharashtra Home Minister and Maharashtra legislator Anil Deshmukh had filed a petition at the Bombay High Court challenging the orders of a special CBI court and a special court constituted under the Prevention of Money Laundering Act that had allowed the CBI to gain custody over him in relation with a corruption case against him. In the morning the next day, the matter was placed before a single judge bench of Justice Justice Revati Mohite Dere, who recused herself from hearing the matter. In the afternoon, it was next placed before Justice P.D. Naik, who too recused himself from taking the matter.
Deshmukh was arrested by the Enforcement Directorate in November last year in a money laundering case.
In 2019, journalist and activist Gautam Navlakha had challenged before the Supreme Court a Bombay High Court decision that refused to quash the first information report against him by the Pune Police under provisions of the Unlawful Activities (Prevention) Act in the Bhima Koregaon case. Between September 30 and October 3, five judges of the Supreme Court – then Chief Justice of India [CJI] Ranjan Gogoi, then Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai, and then Justice S. Ravindra Bhat, recused themselves from hearing the matter. None of them offered any reasons for the same.
Earlier in 2019, in a public interest litigation filed at the Supreme Court challenging the appointment of N. Nageswar Rao as interim Director of the CBI, three judges had recused themselves from hearing the matter in the span of 10 days – then CJI Justice Gogoi, Justice A.K. Sikri, and Justice Ramana.
Only Justice Ramana revealed the reason for his recusal, that being that he knew Rao personally. It was widely speculated that Justice Sikri had recused himself because he was part of the High Powered Committee that had decided to transfer Alok Kumar Verma from the post of Director, CBI, whom Rao came to replace.
Also in 2019, a three-judge division bench of Justices Sikri, Abdul Nazeer and M.R. Shah had recused themselves from hearing the case of Ms. X vs. Registrar General, High Court of Madhya Pradesh at a stage when the hearings had almost been concluded, as both parties had been heard, and the petitioner was in the midst of her rejoinder submissions. As a result, the petition, filed in 2018, in which a female additional district judge had raised the complaint of her forced resignation following sexual harassment by a sitting judge of the High Court, had to be put before a new bench and argued afresh.
In 2011, there were two notable instances of recusal of multiple judges for unknown reasons: first, a two-judge division bench of Justices D.K. Jain and H.L. Dattu recused itself from hearing a plea by then-Sikkim High Court Chief Justice P.D. Dinakaran seeking the stay of a pre-impeachment inquiry by a Rajya Sabha-appointed committee into allegations of misconduct and corruption against him. Later that year, Parliamentarian Kanimozhi, implicated in the 2G telecom spectrum scam by the CBI, applied for bail at the Supreme Court; a two-judge division bench of Justices P. Sathasivam and A.K. Patnaik, which had admitted her plea, recused itself from hearing it.
What are the rules that govern judges' recusal?
Currently, there is nothing in law that governs judges' recusal from hearing certain cases assigned to them.
Usually, judges recuse themselves from cases where they may be faced with conflict of interest – such as, for instance, having a pecuniary interest in or a personal relationship with one of the parties in a matter, having represented one of the parties previously as a lawyer, hearing an appeal against a judgment passed by them when they were judges at a lower court, or even having published their views about a subject which is the crux of the legal dispute. This is done in service of the essential principle of natural justice – that justice must not only be done, but must be seen to be done.
“The biggest practical problem with recusals is the delay it causes in the case. Recusals lead to the case being returned to the Chief Justice of that court, who has to then assign it to a new bench. This takes up crucial time
For instance, in the Novartis case, first Justice Markandey Katju recused himself in 2009, and then Justice Dalveer Bhandari did so in 2011. Justice Katju – for publishing an article in 2004 in which he had argued against the liberal grant of pharma patents, which might lead to the fear of bias by him in the minds of the appellant pharma companies. Justice Bhandari – for activists' objection to his participation in multiple judges' conferences organized by a U.S.-based intellectual property advocacy group that counted Novartis as a member, leading to a justifiable apprehension over his predisposition regarding pharma multinational corporations' interests.
Last year, two Supreme Court judges – Justices Indira Banerjee and Aniruddha Bose – recused themselves from hearing cases related to the state of West Bengal. Though both didn't offer any reasons for the recusal, it was widely understood that it was due to their prior terms as judges at the Calcutta High Court.
Earlier this year, Justices D.Y. Chandrachud and A.S. Bopanna recused themselves from hearing a dispute among the states of Telangana, Andhra Pradesh and Karnataka regarding the allocation of the water from the Krishna River. Their stated reason for the same was that they respectively hailed from the states of Maharashtra and Karnataka, both of which are among the states involved in the decades-long Krishna water dispute.
However, since there are no rules governing recusal, judges may choose not to recuse themselves in the face of such conflict of interest – even in the face of applications requesting their recusal by parties to the matter, such as most famously done by Justice Arun Mishra in 2019. Conversely, they may recuse themselves from particular matters, without giving any reasons for the same, as is the case in the instances highlighted earlier.
What are the problems with mass recusals without offering reasons?
The biggest practical problem with recusals is the delay it causes in the case. Recusals lead to the case being returned to the Chief Justice of that court, who has to then assign it to a new bench. This takes up crucial time, which is all the scarcer in an overburdened judicial system like ours. This is exacerbated if the judge or judges recuse themselves after having heard arguments in the matter, as it effectively means that the matter has to be re-heard from the beginning before a new bench.
More importantly, though, unexplained recusals by judges lead to speculation and conjecture about the judge's possible conflict of interest or other potential motivations behind their decision. This may undermine public faith in the judiciary, especially when witnessed in a case deeply mired in allegations of political corruption like the instant West Bengal SSC case.
“'Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal.' – Justice K. Joseph, NJAC judgment (2015)
Therefore, it is imperative that some rules are devised regarding the procedure for recusal from cases for judges, as was recommended by Justice Madan Lokur in his opinion in the Supreme Court's landmark National Judicial Appointment Commission [NJAC] judgment of 2015.
In the same judgment, in his opinion, Justice Kurian Joseph noted:
"Being an institution whose hallmark is transparency, it is only proper that the Judge discharging high and noble duties, at least broadly indicate the reasons for recusing from the case so that the litigants or the well-meaning public may not entertain any misunderstanding that the recusal was for altogether irrelevant reasons like the cases being very old, involving detailed consideration, decision on several questions of law, a situation where the Judge is not happy with the roster, a Judge getting unduly sensitive about the public perception of his image, Judge wanting not to cause displeasure to anybody, Judge always wanting not to decide any sensitive or controversial issues, etc. Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal. To put it differently, it is part of his duty to be accountable to the Constitution by upholding it without fear or favour, affection or ill-will. Therefore, I am of the view that it is the constitutional duty, as reflected in one's oath, to be transparent and accountable, and hence, a Judge is required to indicate reasons for his recusal from a particular case. This would help to curb the tendency for forum shopping."
In light of recent events in the Calcutta and Bombay High Court, it is imminently apt that Justice Joseph and Justice Lokur's recommendations are taken up by the judiciary.
