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Judge Can Recuse From A Case At His Own Volition, But Not At The Mere Asking Of Litigant: SC

In a significant development, it has to be mentioned right at the outset that the Supreme Court has in a latest, landmark and extremely laudable judgment titled Seema Sapra Vs Court On Its Own Motion in Criminal Appeal No(S). 1238 of 2019 (Diary No. 10342 of 2016) With (Interlocutory Application Nos. 128666/2017, 123144/2017, 122625/2017, 127773/2017, 30030/2018, 112422/2018 and 110313 of 2019) With Writ Petition (C) No. 13 of 2018 (alongwith C.M.P. No. 4015 of 2018 and Interlocutory Application Nos. 62789 of 2019, 99303 of 2019 and 61232 of 2019) & Writ Petition (C) No. 1027 of 2018 (alongwith C.M.P. Nos. 122904 of 2018 and 97450 of 2018) while rejecting a prayer seeking recusal of a Judge who is part of the Bench hearing an appeal explicitly held on August 14, 2019 that a Judge can recuse at his own volition, but need not at the mere asking of a litigating party. The concerned Judge has thus the discretion to grant or refuse the request of a litigating party seeking recusal and it is thus the prerogative of the concerned Judge on whether to heed or not to heed to such plea of recusal. Very rightly so!

To be sure, it was also clarified by the two Judge Bench of Apex Court comprising of Justice AM Khanwilkar and Justice Ajay Rastogi that recusal, at the asking of a litigating party cannot be countenanced unless it deserves due consideration and is justified. To arrive at this conclusion the Judges drew support from the exposition of the Constitution Bench in Supreme Court Advocates-On-Record Association Vs. Union of India. Very rightly so!

Be it noted, before the Supreme Court Bench hearing the appeal, a submission was made by Seema Sapra that she may not get justice from the Bench as Justice Khanwilkar is well acquainted with the Advocates who incidentally are members of the Supreme Court Bar Association against whom personal allegations have been made by her in the accompanying writ petition. It must be noted that the Bench of Justice Rastogi and Justice Khanwilkar were considering an appeal filed by Seema Sapra against the Delhi High Court judgment holding her guilty of having committed contempt of court. The Delhi High Court had imposed a punishment of imprisonment for a period of one month with a further direction restraining her to argue as an advocate or in-person, except in her defence, before any Bench of the High Court of Delhi or any Court or Tribunal subordinate to the High Court for a period of two years from the date of passing of the judgment. 

To start with, the ball is set rolling in para 1 of this noteworthy judgment wherein it is observed that, “The instant criminal appeal has been preferred under Section 19(1) of the Contempt of Courts Act, 1971 assailing the judgment of the High Court of Delhi dated 17th December, 2015 holding the appellant guilty of having committed contempt of Court and imposing punishment of imprisonment for a period of one month and a fine of Rs. 2,000/- (Rupees Two Thousand Only) to be deposited within a period of three months from the date of the order, failing which undergo a further term of imprisonment of one month with a further direction restraining the appellant to argue as an advocate or in-person, except in her defence, before any Bench of the High Court of Delhi or any Court or Tribunal subordinate to the High Court of Delhi for a period of two years from the date of passing of the impugned judgment dated 17th December, 2015.” Para 2 then states that, “The appellant had been exempted from surrendering vide order of the Chamber Judge dated 9th October, 2017. Notice was issued on the applications as well as on the appeal vide order dated 26th march, 2018, which has been duly served.”

As things stand, it is then brought out in para 3 that, “We have heard the parties. During the course of hearing, the appellant-in-person made an oral request that this Bench ought to recuse from hearing the matter which fact has been noted in our order dated 11th April, 2019 while reserving the order. The same reads thus:

“We have heard the petitioner in-person.

She is at liberty to file additional documents, which were referred to during the course of argument or any further document(s) which she intends to file.

She prays for four weeks’ time to do so.

Appropriate order will be passed after the additional document(s) are filed.

After hearing the petitioner in-person for almost two hours and this order being dictated, the petitioner submits that this Bench should not hear these matters.

Even this submission will be considered in the order that we may pass after considering the document(s).

Orders reserved.””

To put things in perspective, it is then envisaged in para 4 that, “Instead of filing additional documents in terms of the liberty given to the appellant in the aforementioned order, she moved an I.A. No. 62789 of 2019 in Writ Petition (C) No. 13 of 2018 on 12th April, 2019. We will take it up for consideration while dealing with the main writ petition in which the same has been filed. For the present, suffice to point out that one of the reliefs claimed in the said application is that the cases be listed before a Bench not comprising of one of us (A.M. Khanwilkar, J.). The appellant, however, mentioned the matter on 6th May 2019 to inform the Court about filing of the said application. Since the mentioning was done before a different Bench, the application could not be taken up for hearing and was directed to be listed on 2nd July, 2019. Again, on 2nd July, 2019, the cases were listed before a different Bench and not the same combination which had heard the matters on 11th April, 2019. It was, therefore, ordered that the cases be listed before the same Bench which had heard the matter on 11th April, 2019 and reserved order therein. Accordingly, the cases were listed on 12th July, 2019 before the specially constituted Bench. After hearing the appellant-in-person, the Court passed the following order:

“We have heard the petitioner-in-person on the applications for issue of appropriate directions/order and for modification of previous Court order, for over one hour.

After hearing the petitioner-in-person for quite some time, we asked her to confine her arguments to the issues which may require our consideration. She submitted that one of us (A.M. Khanwilkar, J.) should recuse. For that, she invited our attention to the averment made in I.A. No. 62789 of 2019 in particular. Such request cannot be accepted merely for asking by the petitioner-in-person. Reasons for not accepting that prayer will be elaborated in the order to be passed as noted in our previous order dated 11.04.2019.

It is open to the petitioner to file list of dates and/or any other relevant document(s), if she so desires. That be filed within two weeks.

We reiterate that all aspects will be considered and appropriate orders passed on the concerned proceedings, to be pronounced later.””

To say the least, it is then pointed out in para 5 that, “We must, at the outset, deal with the gravamen of the apprehension of the appellant as to why she has insisted for recusal of one of us (A.M. Khanwilkar, J.). Even on a liberal reading of the averments in the stated application, the apprehension of the appellant is founded on the allegation that she may not get justice from the Bench as Justice A.M. Khanwilkar is well acquainted with the Advocates who incidentally are members of the Supreme Court Bar Association against whom personal allegations have been made by her in the accompanying writ petition.”

What’s more, it is then pointed out in para 6 that, “We may usefully refer to Court On Its Own Motion Vs. State [MANU/DE/2758/2007] (paragraph 28), in which it has been observed as follows:

“The path of recuse is very often a convenient and soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favor, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office.”

It is also pertinent to remind ourselves of the dictum of Lord Denning who observed in R. Vs. Metropolitan Police Commissioner ex p. Blackburn (1968) 2 All ER 319 as under:

“All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.”” 

It cannot be lost on us that it is then pointed out in para 7 that, “Reverting to the present cases, it is noticed from the impugned judgment that around 28 Judges of the High Court of Delhi, who had heard the writ petition filed by the appellant, had to recuse by the time the writ petition was finally decided on 2nd March, 2015. Even after filing of the instant criminal appeal at least three Judges of this Court have recused themselves, for one reason or the other. Not only that, the appellant had moved a formal application being the present appeal to recall the order passed on 7th February, 2018 appointing Senior Advocate Mr. Vikas Singh as Amicus Curiae, as she had strong objection to his appointment. Similarly, the appellant had filed I.A. No. 111244 of 2017 for recall of order dated 27th October, 2017 appointing Ms. Pinky Anand, learned Additional Solicitor General to assist the Court as Amicus Curiae. That application was also allowed by this Court vide order dated 4th December, 2017.”

As it turned out, it is then unfolded in para 8 that, “Be that as it may, after the matter was assigned to this Bench during the hearing, which lasted for more than two hours on 11th April, 2019, the appellant had orally suggested that this Bench should not hear the cases as has been noted in the said order. On that day, the Court reserved its order giving liberty to the appellant to file additional documents to reinforce her arguments on the merits of the contempt proceedings, as insisted by her during the oral submission. Instead of availing of that liberty, the appellant chose to file I.A. No. 62789 of 2019 in Writ Petition (C) No. 13 of 2018 praying for recusal of one of us (A.M. Khanwilkar, J.). However, keeping in mind the totality of the situation, the Court declined her prayer as recorded in the order dated 12th July, 2019.”

More importantly, it is then very rightly pointed out in para 9 that, “Indubitably, it is always open for a Judge to recuse at his own volition from a case entrusted to him by the Chief Justice. But, that may be a matter of his own choosing. Recusal, at the asking of the litigating party, cannot be countenanced unless it deserves due consideration and is justified. We draw support from the exposition of the Constitution Bench in Supreme Court Advocates-On-Record Association and Another Vs. Union of India [(2016) 5 SCC 808]. It must never be forgotten that an impartial Judge is the quintessence for a fair trial and one should not hesitate to recuse if there are just and reasonable grounds. At the same time, one cannot be oblivious of the duty of a Judge which is to discharge his responsibility with absolute earnestness, sincerity and being true to the oath of his/her office. After perusal of the assertions made in the stated I.A.s, we have no hesitation in observing that the same are devoid of merit and without any substance. To observe sobriety, however, we say no more.” 

In essence, what is stated in para 9 is the crux of this extremely laudable and noteworthy judgment! It sends an unmistakable message to one and all that a Judge can recuse from a case at his own volition but not at the mere asking of a litigant. It also sends a loud and clear message that a Judge should not hesitate to recuse if there are just and reasonable grounds! Very rightly so! It is for the Judge and not the litigant who has to decide whether the Judge should recuse in a particular case or not!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.