‘Posterity Will Not Forgive Me If I Recuse,’ Justice Arun Mishra Says

Recusal on grounds put forth by petitioners would open the floodgates of forum shopping and bench hunting, said Justice Mishra.
A view of the Supreme Court in New Delhi. (Photo: PTI)
A view of the Supreme Court in New Delhi. (Photo: PTI)

A judgment is not a halting place, it is a stepping stone. It is not like a holy book which cannot be amended or corrected. In saying so, Justice Arun Mishra refused to recuse himself from the five-judge bench hearing a case related to land acquisition. The recusal judgment, authored by Justice Mishra, has been concurred with by the other four judges—Justice Indira Banerjee, Justice Vineet Saran, Justice MR Shah and Justice S Ravindra Bhat.

This five-judge bench has been set up to decide the correctness of two contradictory judgments of the Supreme Court. The two judgments revolved around the interpretation of section 24(2) of the 2013 Land Acquisition Act. But even before the merits of the cases could be heard, several petitioners took objection to Justice Mishra’s inclusion on the five-judge bench. That’s because he was part of the bench which had previously ruled on this matter.

Reasons For Denying Recusal

Justice Mishra said there may not be even one judge in the apex court who has not taken a view one way or the other concerning Section 24 of the Land Acquisition Act of 2013, either in the Supreme Court or in the high court. If the request for recusal is accepted, no judge will have the power to decide such a matter on the judicial side, his order said.

“If a request for recusal on the ground of legal pre-­disposition in the form of a judgment is acceded to, that would destroy the very edifice of an independent judicial system,” said Justice Mishra.

If parties are permitted to seek recusal on grounds that a particular judge has decided upon the issue previously, it would open the floodgates of forum shopping and bench hunting, Justice Mishra said.

The roster-making power lies with the Chief Justice of India so that litigants are not able to choose the judges on their case. Pointing to precedents in United Motors-Bengal Immunity, Ujagar Prints-Empire Industries and others, Justice Mishra said it’s a consistent practice in the Supreme Court that judges who have rendered a decision earlier in smaller combination, have also formed part of the larger bench.

“If requests for recusal are acceded to for the asking, litigants will be unscrupulously taking over the roster-making powers of the Chief Justice and that would tantamount to interference with the judicial system, by the mighty to have a particular bench by employing several means and putting all kinds of pressures from all angles all around,” said Justice Mishra.

And for these reasons, Justice Mishra refused to recuse from the five-judge bench and concluded:

“I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system that has compelled me not to recuse,” Justice Mishra said.

In a concurring order, the four judges said there is no legal principle or norm that bars Justice Mishra’s participation in the five-judge bench. Several precedents and the practice of the court, point to the contrary, that is the judge who decided a previous cause, finally, can — and very often has — participated in the later larger bench to which such previous decision is referred for reconsideration, the four judges concluded.

Justice Arun Mishra Won’t Recuse From Hearing Land Acquisition Case


Payaswini Upadhyay is Editor - Law & Policy- at BQ Prim...more
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