To Recuse or Not to Recuse

Yash Jain and Ayushi Dubey


The test of reasonable apprehension of bias must be applied to decide that no person should be a judge in his own cause and justice should not only be done but manifestly be seen to be done.

As the final judgement of the Supreme Court in the pending ‘Land Acquisition Case’- Indore Development Authority v. Manohar Lal, is awaited, it is pertinent to recall the controversy which clouded the case in its early days, when Supreme Court Justice Arun Mishra flatly refused to recuse from the 5-judge bench constituted to hear it.

The case is regarding the interpretation of Section 24(2) of the New Land Acquisition Act. As per Section 24(2), the acquisition proceedings initiated 5 years before the new Act will lapse if compensation has not been paid to the landowner.

Two Conflicting Judgements

In 2014, a three-judge bench of the SC comprising the then CJI R M Lodha, Justice Kurian Joseph and Justice Madan Lokur held that deposit of compensation amount by the government in treasury cannot be treated as payment to the landowner.

In 2017, a two-judge bench comprising Justices Arun Mishra and Amitava Roy challenged the correctness of the 2014 decision and referred it to a larger bench. On February 8, 2018, a bench comprising Justices Arun Mishra, A K Goel and M Shantanagoudar overruled 2014 decision and held that deposit of compensation in government treasury is to be regarded as payment to the landowner. Justice Shantanagoudar dissented in his opinion, holding that a three-judge bench “cannot overrule a precedent laid down by a bench of equal strength”.

This overruling created turmoil in SC. Another three-judge bench headed by Justice Lokur, who was part of the 2014 decision, took objection to the decision taken by Justice Mishra led bench and restrained High Courts from dealing with cases under Section 24 until the issue was resolved. Later, two-judge benches, one headed by Justice Mishra and another by Justice Goel, referred the issue to CJI. The present Constitutional bench headed by Justice Arun Mishra will examine the correctness of the 2018 judgement authored by Justice Arun Mishra himself.

The critical question which arises here is how can Justice Arun Mishra head a bench to decide the correctness of an issue wherein he would be looking at his own decision taken back in 2018?

The petitioners have submitted that this has given rise to an apprehension of bias and has violated the legal principle of stare decisis. Further, a predisposition towards a particular view raises a reasonable doubt of judicial bias. Additionally, Justice Mishra has consistently doubted the correctness of 2014 judgement and has written elaborately overruling it. On the other hand, Justice Mishra asserted that he was not biased and was open to taking a different view. Moreover, he slammed the comments in social media against him heading the bench and said that he will not allow the maligning of the institution.

Test of Bias

In Ranjit Thakur v. Union of India, the test of likelihood of bias was explained. The court held that 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 mind and ask himself, however, honestly. “Am I biased? “but to look at the mind of the party before him. Taking a different stand from this case, Justice Mishra in Indore Development Authority case held that it is for the judge to check and find out whether he will be able to deliver impartial justice to a cause and will not be prejudiced by any fact or law and can take an independent view. From this case, Justice Mishra has shifted the viewpoint about the test of bias.

In State of West Bengal v. Shivananda Pathak, it was held that an essential requirement of judicial adjudication is that the judge is impartial and neutral and is in a position to apply his mind objectively to the facts of the case put up before him. If he is pre-disposed or prejudiced, he disqualifies himself from acting as a judge. Further, in Narender Singh Arora v. State, it was held that a person who tries a cause should be able to deal with the matter placed before him objectively, fairly and impartially. No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind.

The conventional test of bias which was followed across various jurisdictions was inverted by Justice Mishra by laying down an opposite view. The long-established perception of the litigant is that what is material is not the actual existence of bias, but the reasonable apprehension in the mind of litigant regarding the likelihood of bias which impacts the decision. Inverting this well-settled principle, Justice Arun Mishra stated that the test should be based upon self-perception of the very same judge, whom the party is apprehending to be biased. Put another way, self-attestation by the judge is sufficient.

In this mind, Justice Mishra stated that there is no room for prejudice or bias. Justice has to be pure, untainted and uninfluenced by any factor and even decision for recusal cannot be influenced by outside forces. If I recuse, it will be a dereliction of duty, injustice to the system and to other judges who are or to adorn the bench in the future.

Concluding Remarks

The test of reasonable apprehension of bias must be applied to decide that no person should be a judge in his own cause and justice should not only be done but manifestly be seen to be done. To preclude a person from judging a case, the test of reasonable apprehension must be applied. In other words, the court must inquire whether the person judging the particular case has any interest in the matter or not. In each case, the court has to consider whether a prudent and reasonable person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. In Mahender Yadav v. CBI, the test of “real likelihood” was preferred over the “real suspicion” test. Over the years, courts have persistently taken into consideration all the human probabilities and conduct of human beings to judge a particular matter.

Now, since Justice Arun Mishra has denied recusing himself from the matter, and the oral arguments have wrapped up, it will be interesting to see how the judiciary will act in similar circumstances in the future.

The Authors are III Year B.A. L.L.B. (Hons.) students at the Institute of Law, Nirma University.