Land Acquisition Act: Justice Arun Mishra refuses to recuse amid growing online criticism

[dropcap]S[/dropcap]UPREME Court judge Justice Arun Mishra on Tuesday took strong exception to his online criticism over some reports carried by a national daily, saying that some people in media were ganging up to malign judiciary.

A campaign running in social media has sought Justice Mishra's recusal from the Constitution bench, which is to decide the interpretation of Section 24 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act, 2013).

The Constitution bench comprises Justices Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat.

When senior advocate Shyam Divan for one the parties sought recusal of Justice Mishra on the ground of the impartiality of the tribunal (here the court), Justice Mishra retorted "Left to me, I would have taken decision on issue, but you maligned the judge and the institution in social media".

Justice Mishra added, "every judge of this court has dealt with the case at some time or other. So the disqualification is for all of us".

Divan responded, "I can't speak for everyone on social media. But our request for recusal was meant to strengthen the court. Our stand is buttressed by local and global law".

Solicitor General appearing for the State of Haryana opposed the plea for the recusal of Justice Mishra.

He said, "a particular objection comes in some website, article or blog or on social media even before hearing takes place. There is an emerging pattern to influence the court in an important issue".

"If I am satisfied about my integrity that I can decide this matter independently, I will not recuse. If I know I can be influenced by anybody other than God, then I will be the first person to recuse," said Justice Arun Mishra.

He asked the parties to satisfy him as to why he should recuse himself from hearing the case.

"I may be criticized for my view, I may not be a hero and I may be a blemished person but if I am satisfied that my conscience is clear, my integrity is clear before God, I will not budge. If I think I will be influenced by any extraneous factor, I will be the first to recuse here," he said.

Senior advocate Shyam Divan made the submissions on the issue of recusal, which remain inconclusive today. He submitted that it would be extremely difficult for the counsel if one of the judges on Constitution Bench was part of the Bench whose judgment has been referred to Constitution Bench. It could be like arguing an appeal against a judgment of another Bench.

He added, there was a predisposition on the part of Justice Mishra since his decision in Indore Development Authority is not a reference order. It is a 100-page judgment, and he had already taken a view in the matter.

"Justice Arun Mishra sitting to decide the correctness of the Indore Development Authority is in effect exercise of appellate jurisdiction. Hence, the Impartial Institution test should be applied", ShyamDivan submitted.

Background

In 2014, a three-judge bench of the Supreme Court consisted of the then Justices R M Lodha, Madan B Lokur and Kurian Joseph in Pune Municipal Corporation case had interpreted Section 24 of the Land Acquisition Act in one way that is for the purposes of Section 24(2) of the 2013 Act, compensation would be considered 'paid' if the amount had been deposited to the relevant court.

In December 2017, a two-judge bench of the apex court comprising Justices Arun Mishra and Amitava Roy took a contrary view, and asked for a larger bench to consider the matter. The matter was accordingly referred to a larger bench of three-judges.

In February 2018, a three-judge bench comprising Justices Arun Mishra, AK Goel and MM Shantanagoudar in Indore Development Authority took the contrary view on Section 24 from Pune Municipal Corporation case.

According to Indore Development Authority case, paying money into the government treasury sufficed. Thus, even if the money hadn't been paid to the court or the landowner's account, the proceedings under the old act wouldn't be deemed lapsed. Judges in this case also overruled all the two-judge bench decisions that had followed Pune Municipal Corporation case since according to them; judgment in Pune Municipal Corporation was per incuriam. Justice Shantanagoudar, however, had dissented on the issue of holding the decision Pune Municipal Corporation per incuriam.

A few days after Justice Mishra's judgment in Indore Development Authoritycase, another case related to Section 24(2) was brought to the notice of the then Justice Madan Lokur's court. Justice Lokur had been one of the three judges who delivered the Pune Municipal Corporation judgment in 2014.

Justice Lokur had then issued an order requesting high courts and the Supreme Court to hold deciding any cases on the issue till the conflict between the 2014 and 2018 decisions was resolved.

Justice Mishra, hearing yet another case about the issue on 22 February 2018 referred the matter to the CJIto constitute a larger Bench to decide the correct interpretation of Section 24(2).

This is how the matter leading to interpretation of Section 24(2) of the Land Acquisition Act, 2013 landed before the present Constitution bench headed by Justice Mishra.