SHAH AND S. RAVINDRA BHAT, JJ.] versus MANOHAR LAL & ORS. ETC.
[2019] 15 S.C.R. 1085, Supreme Court of India, 2019
Outcome: Unknown
Segment: Issues
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1085
INDORE DEVELOPMENT AUTHORITY
v.
               MANOHAR LAL & ORS. ETC.
(Special Leave Petition (C) Nos.9036-9038 of 2016)
OCTOBER 23, 2019
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M.R. SHAH AND S. RAVINDRA BHAT, JJ.]
Justice Delivery System: Practice and Procedure – Recusal
of judge – Whether a Judge who has expressed an opinion in a
smaller Bench and the case has been referred to a larger Bench,
because of the conflict of the opinion or otherwise, can hear the
matter in a larger bench – Held: Rendering a decision on any issue
of law and the corrective procedure of it cannot be said to be ground
for recusal of a Judge; otherwise, no Judge can hear a review,
curative petition, or a reference made to the larger bench – A Judge
who had rendered any decision in a smaller combination is not
disqualified from being part of a larger Bench when a reference is
made to the larger bench – Rather, it is a consistent practice
prevailing in various High Courts as well as of Supreme Court to
include 
the 
same 
Judge/Judges 
in 
larger 
Benches.
(Arun Mishra, J.)
Justice Delivery System: Practice and Procedure – Recusal
of judge prayed for on the ground of legal pre-disposition – Held:
There is absolutely nothing wrong in holding a particular view in a
previous judgment for or against a view canvassed by a litigant –
No litigant can choose, who should be on the Bench – He cannot
say that a Judge who might have decided a case on a particular
issue, which may go
against his interest subsequently or is part of a
larger Bench should not hear his case – Furthermore, if a party or
his Counsel can at length argue on the question of recusal of the
Judge before him, he can also successfully question the correctness
of a judgment rendered by him – If litigants are given the right to
seek recusal of a judge on the ground that in a smaller Bench, a
view has been taken by the Judge, the correctness of which has to
be decided by the larger Bench, which includes the same Judge,
then on a parity of reasoning recusal might be sought on the ground
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[2019] 15 S.C.R.
of the judge having taken a view one way or the other even in a
different case in which similar issues were involved if the judge has
decided similar issues earlier, in the same Court or in a different
Court – This would open the flood gates of forum shopping –
Recusal upon an imagined apprehension of legal pre-disposition
would, in reality amount to acceding to the request that a Judge
having a particular view and leanings in favour of the view which
suits a particular litigant, should man the Bench – It would not only
be allowing Bench hunting but would also be against the judicial
discipline and will erode the confidence of the common man for
which the judicial system survives –   If 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 – The entire judicial system is based on sound constitutional
principles – The roster making power is bestowed on the Chief Justice
of India so that litigants are not able to choose the Judges before
whom they have to argue a matter, and he is a constitutional
functionary who has been enjoined with this task at the highest
pedestal to exercise the power of roster making – Once he has
exercised his power, it is not for the Judges to choose – As per their
oath, they have to discharge their duties without fear and favour
and in a dispassionate manner without any ill
will, bias towards
litigants, or a cause – Abuse of court – Bench Hunting.
(Arun Mishra, J.)
Abuse of court:  Bench hunting – Request for recusal of Judge
by litigants – Held: 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 – Moreover, recusal in such
unjustified circumstances, would become the norm – If recusal is
made, it would tantamount to giving room to unscrupulous litigant
to have a Judge of their choice who can share the views which are
to be canvassed by them – No such right can be given to any person
under the said guise – Justice Delivery System.   (Arun Mishra, J.)
‘Judicial Recusal’ by Grant Hammond, a former Judge
of the Court of Appeal of  New Zealand  – referred to.
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Justice Delivery System: Recusal of Judge – Who to decide –
Held: Recusal is not to be forced by any litigant to choose a Bench
–  It is for the Judge whose participation is objected to, to decide
recusal application – Further, the embarrassment of hearing the
lengthy arguments for recusal should not be a compelling reason to
recuse – Nothing should come in the way of dispensation of justice
or discharge of duty as a Judge and judicial decision-making.
(Arun Mishra, J.)
M/s. Ujagar Prints v. Union of India (1986) Suppl. SCC
652 – relied on.
Pune Municipal Corporation & Anr. v. Harakchand
Misirimal Solanki & Ors. (2014) 3 SCC 183 : [2014] 1
SCR 783 ; Yogesh Neema & Ors. v. State of Madhya
Pradesh (2016) 6 SCC 387; Sree Balaji Nagar
Residential Assn. v. State of Tamil Nadu (2015) 3 SCC
353 : [2014] 7 SCR 799 ; Indore Development Authority
vs. Shailendra (Dead) through LRs. & Ors., 2018 SCC
Online SC 100 ; State of Bombay v. United Motors India
Ltd., [1953] SCR 1069 ; Bengal Immunity Co. Ltd. v.
State of Bihar, [1955] 2 SCR 603; M/s. Ujagar Prints
and Ors. (II) v. Union of India & Ors.(1989) 3 SCC
488 : [1988] 3 Suppl.  SCR  770; Empire Industries
Ltd. v. Union of India (1985) 3 SCC 314 : [1985] 1
Suppl. SCR  292; Gyan Devi Anand v. Jeevan Kumar
& Ors.(1985) 2 SCC 683 : [1985] 1 Suppl. SCR 1 ;
Ganpat Ladha v. Sashikant Vishnu Shinde (1978) 2
SCC 573 : [1978] 3 SCR  198 ; Sajjan Singh v. State of
Rajasthan 1965 AIR SC 845 : [1965] SCR 933;
Damadilal v.
Parashram (1976) 4 SCC 855 : [1976]
Suppl. SCR  645 ;  Kesavananda Bharati v. the State of
Kerala (1973) 4 SCC 225 : [1973]  Suppl. SCR 1;
Hyderabad Industries Limited and Anr. v. Union of India
& Ors. (1995) 5 SCC 338 : [1995] 2 Suppl. SCR  287;
Khandelwal Metal & Engineering Works v. Union of
India (1985) 3 SCC 620 : [1985] 1 Suppl. SCR 750;
Hyderabad Industries Ltd. & Anr. v. Union of India &
Ors. (1999) 5 SCC 15 : [1999] 3 SCR 471 ; M/s. Cloth
Traders (P) Ltd. v. Additional C.I.T., Gujarat-I, (1979)
INDORE DEVELOPMENT AUTHORITY  v.
              MANOHAR LAL & ORS.
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[2019] 15 S.C.R.
3 SCC 538 : [1979] 3 SCR  984; Distributors (Baroda)
Pvt. Ltd. v. Union of India & Ors.,(1986) 1 SCC 43:
[1985] 1 Suppl. SCR 778 ; Petlad Turkey Red Dye Works
Co. Ltd. v. 
Commissioner 
of 
Income 
Tax,
Bombay 
North, 
Ahmedabad 
[1963] 
Suppl.1
SCR 871 ; Keshav Mills Co. Ltd. v. Commissioner of
Income Tax, Bombay North, Ahmedabad [1965] 2 SCR
908 ; Jamal Uddin Ahmad v. Abu Saleh Najmuddin,
(2003) 4 SCC 257 ; State of W.B. v. Shivananda Pathak,
(1998) 5 SCC 513 : [1998] 1 SCR 811 ; Asok Pande v.
Supreme Court of India, (2018) 5 SCC 341 : [2018] 3
SCR 337;  Supreme Court Advocates-on-Record
Association & Anr. v. Union of India (recusal matter),
(2016) 5 SCC 808 : [2015] SCR 975; Subrata Roy
Sahara v. Union of India & Ors. (2014) 8 SCC 470 :
[2014] 12 SCR 573 ;  R.K. Anand v. Registrar, Delhi
High Court (2009) 8 SCC 106: [2009] 11 SCR 1026;
Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC
156 ;  Bal Kishan Giri v. State of Uttar Pradesh (2014)
7 SCC 280 : [2014] 6 SCR 545 ;  All India Institute of
Medical Sciences v. Prof. Kaushal K. Verma (2015) 220
DLT 446 – referred to.
John Patrick LITEKY v. United States 510 U.S. 540
(1994) – referred to.
Shri M.C. Setalvad, in his Autobiography “My Life,
Law and other things” – referred to.
Justice Delivery System: Recusal of Judge – Practice and
procedure – Reference before five judge Bench comprising of Justice
Arun Mishra and four other Hon’ble Judges – Application for
Recusal of Justice Arun Mishra on ground that as a Judge he had
expressed an opinion in a case in a smaller Bench and that case
has now been referred to this larger five-Judge Bench – Justice
Arun Mishra rejected the application for recusal – Held: (per other
four members of the Bench): 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
– There is no legal impediment or bar to participation of Justice
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Arun Mishra to hear reference on the merits in the present Bench –
This Bench shall proceed to hear and decide the reference made to
it, on its merits.
Supreme Court Advocates-on-Record Association & Anr.
v. Union of India (2016) 5 SCC 808: [2015] SCR 975
– relied on.
Case Law Reference
In the Order of Arun Mishra, J.
[2014] 1 SCR 783
referred to
Para  2
(2016) 6 SCC 387
referred to
Para  2
[2014] 7 SCR 799
referred to
Para 2
[1953] SCR 1069
referred to
Para 14
[1955] 2 S.C.R. 603
referred to
Para 15
[1988] 3 Suppl. SCR 770
referred to
Para 16
[1985] 1 Suppl. SCR 292
referred to
Para 16
(1986) Suppl. SCC 652
relied on
Para 16
[1985] 1 Suppl. SCR 1
referred to
Para 17
[1978] 3 SCR 198
referred to
Para 17
[1976] Suppl. SCR 645
referred to
Para 17
[1973] Suppl. SCR 1
referred to
Para 19
[1965] SCR  933
referred to
Para 19
[1995] 2 Suppl. SCR 287
referred to
Para 20
[1985] 1 Suppl. SCR 750
referred to
Para 20
[1999] 3 SCR 471
referred to
Para 20
[1979] 3 SCR 984
referred to
Para 21
[1985] 1 Suppl. SCR 778
referred to
Para  21
[1963] 1 Suppl. SCR 871
referred to
Para 22
[1965] 2 SCR 908
referred to
Para 22
  INDORE DEVELOPMENT AUTHORITY v.
               MANOHAR LAL & ORS.
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(2003) 4 SCC 257
referred to
Para 23
[1998] 1 SCR  811
referred to
Para 25
[2018] 3 SCR 337
referred to
Para 26
[2015] SCR 975
referred to
Para 34
[2014] 12 SCR 573
referred to
Para 35
[2009] 11 SCR 1026
referred to
Para 37
(2018) 1 SCC 156
referred to
Para 38
[2014] 6 SCR 545
referred to
Para 39
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) Nos.9036-9038 of 2016
From the Judgment and Order dated 30.11.2015 of the High Court
of Madhya Pradesh, Bench at Indore in Writ Appeal Nos.514, 799 and
772 of 2006
With
Civil Appeal Nos.4835 of 2015, 19532--19533, 19356, 19362, 19361,
19358, 19357, 19360, 19359, 19363, 19364, 19412 of 2017, Special Leave
Petition (C) Nos. 9798-9799 of 2016, 17088-17089, 37375, 37372, 16573-
-16605, 34752-34753 of 2016, 15890, 33022, 33127, 33114 of 2017, 30452
of 2018, 16051 of 2019, Special Leave Petition  (C) No....CC No. 15967
of 2016, Diary No. 23842 of 2018, M.A. No.1423 of 2017  in Civil Appeal
No.12247 of 2016, M.A. No.1787 of 2017  in Civil Appeal No.10210 of
2016, M.A. No.1786 of 2017 in Civil Appeal No.10207 of 2016, M.A.
No. 45 of 2018 in Civil Appeal No.6239 of 2017.
Tushar Mehta, SG, Ms. Pinky Anand, ASG, Ajay Bansal, AAG/
Haryana,   R. Balasubramanium, Shyam Divan, Gopal Sankaranarayanan,
Mohan Parasaran, Dinesh Dwivedi, Anoop George Chaudhari, Dhruv
Mehta, Anukul Chandra Pradhan, Shashikiran Shetty, K. S. Namdar,
Rameshwar Singh Malik, Jayanth Muth Raj, V. Shekhar,
Anup Roy
Choudhary, Sr. Advs., Kanu Agrawal, Manan Popli, Rajeev Ranjan, B.
K. Satija, Ajay Bansal, Ms. Veena Bansal, Gaurav Yadava, Rajeev Ranjan,
Ms. Veena Bansal, Sanjay Kumar Visen, Ms. Rachana Srivastava,
Ms. Garima Prashad, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ashok
Arora, Shakti Singh, Abhishek Aanand Rai, Dr. Sushil Balwada, Sanjay
Kapur, Ms. Megha Karnwal, Bharath Gangadharan, Harshal Narayan,
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Ms. Harshita Raghuvanshi, V. M. Kannan, Ms. Shubhra Kapur, Pramod
Dayal, Nikunj Dayal, Ms. Payal Dayal, Rakesh Kumar, Ashwani Kumar,
Zoheb Hossain,  Ms. Shashi  Kiran,  Dr. Satish  Chandra,  Ajay  Prajapati,
Manoj Jain, Shankar Chillarge, (for M/s. Lawyer’s Knit & Co.), Madhu
Prakash, Rituraj Biswas, Rituraj Choudhary, Chandan Kumar, Prashant
Singh, Ankur Talwar, Ms. Snidhi Mehra, Raj Bahadur Yadav, Ashwani
Kumar, Ms. Saudamini Sharma, Sumit Teterwal, Chakitan V. S. Papta,
Ms. Peeha Verma, Jay Kumar, Ravinder Nain, Ms. Binu Tamta, Pankaj
Pandey, Manish Paliwal, Vikas Kumar, Ms. Sugandha Yadav, Sudipto
Sircar, Gaurav Agrawal, Shrutanjaya Bhardwaj, Vishal Sinha, Zoheb
Hossain, Adeeba Mujahid, Vivek Gurnani, Ms. Aditi Dani, Baldev K.,
Ravi Kumar, K. Mishra, Yasharth Kant, Nishant Singh, Deepak Goel,
Harsh Parashar, Avishkar Singhvi, Siddharth Batra, Ravinder Kumar,
Ms. Garima Sehgal, Ram Shankar, Ashish Chaubey, A. Vasanthakumar,
Amit Arora, Om Prakash Kumar Srivastava, R. V. Kameshwaran,
Mahesh Thakur, Sharan Dev Singh Thakur, Ms. Anuparna Bordoloi,
Ms. Sheffali Chaudhary, Ms. Vipasha Singh, Shailesh Madiyal, Vybhav
Ramesh, Sudhanshu Prakash, Karthik Anand Vijay Kumar, Ms. Farah
Fathima, Hitesh Kumar Sharma, S. K. Rajora, Ms. Sandhya Sharma,
R. K. Sharma, Jitesh Malik, Satish Kumar, K. V. Vijayakumar, Kamlendra
Mishra, Rajeev Kumar Dubey, Shashank Shekhar, Ms. Sheetal Rajput,
Ms. Ritu Reniwal,  Nipun Katyal,   Rahul Kaushik, Pradeep Aggarwal,
Lal Pratap
Singh, Umesh Pratap Singh, Arjun Aggarwal, Ms. Ruchi Kohli,
Kunal Verma, Mrs. Yugandhara Pawar Jha, Ms. Rashmi Nandakumar,
Ms. Ayushma Awasthi, Shankar Narayanan, B. V. Balaram Das, Chandra
Bhushan Prasad,  Pradhuman Gohil,. Ms.Taruna Singh Gohil, Ms. Ranu
Purohit, Shiva P., Ms. Jaikriti S. Jadeja, Siddhartha Chowdhury, Gaurav
Goel, Sachin Gupta, Dinesh S. Badiar, Rameshwar Prasad Goyal, Puneet
Jain, Ms. Christi Jain, Harsh Jain, Harshit Khanduja, Shailendra Sharma,
Pankaj Sharma, Ms. Pratibha Jain, Ritesh Khatri, Abhisth Kumar, Ajay
Choudhary, Ms. Rachana Srivastava, Sudarsh Menon, Simarandra B.,
Ram Gupta, Keshav Ranjan, Senthil Jagadeesan, Ms. Sonakshi Malhan,
Ms. Shruiti Chowdhary, Ms. Mrinal Kanwar, Ambhoj Kumar Sinha,
Abhinav Ramkrishna, Thomas Joseph, Ms. Anannya Ghosh, R. Anand
Padmanabhan, Shashi Bhushan Kumar, Vikas Mehta, Rajat Sehgal,
Apoorv Khator, C. Paramasivam, M. Yogesh Kanna, Arun K. Sinha,
Yashraj Singh Deora, Munawwar Naseem, C. L. Sahu, Varun Thakur,
Brajesh Pandey, Varinder Kumar Sharma, Mrs. Balvinder Kaur Brar,
Rajesh Mahale, Mukesh Verma, Pawan Kumar Shukla, Sanjeet Paliwal,
INDORE DEVELOPMENT AUTHORITY & ORS. v.
        MANOHAR LAL & ORS.
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Yash Pal Dhingra, Pallav Mongia, Dawneesh Shaktivati, A. Goyal,
Dr. M. S. Verma, Ms. Acpana Malik, Ms. Richa Verma, Ms. Shashi
Singh, Rajnish Kumar Jha, M/s. Delhi Law Chambers, Divyakant Lahoti,
Manish Kaushik, Parikshit Ahuja, Praveena Bisht, Kartik Lahoti, K.
Parameshwar, M. V. Mukunda, P. V. Dinesh, Ms. Sindhu T. P., Mukund
P. Unny, Bineesh K., R. S. Lakshman, Ashwini Kumar Singh, Aniruddha
Deshmukh, Rajesh Srivastava, K. K. Trivedi, Mayank Trivedi, Mahavir
Godvi, Rabin Majumder,  Sourav Roy, Harsh Anand, Gaurav Majumdar,
Ms. Devika Khanna, Yash Ahlawat, Mrs. V. D. Khanna, Devendra Singh,
Manish K. Bishnoi, Hiren Dasan, Abhimanue Shrestha, Abhishek Gupta,
M/s. S. Narain & Co., Shree Pal Singh,  Balaji Srinivasan, Advs. for the
appearing parties.
The Orders of the Court were passed by
ARUN MISHRA, J.
1. The question of interpretation of Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short, ‘the Act of 2013’), has been referred
to a five-Judge Constitution Bench of this Court.
2. A three-Judge Bench of this Court in Pune Municipal
Corporation & Anr. v. Harakchand Misirimal Solanki & Ors. (2014)
3 SCC 183, had delivered a judgment interpreting section 24 of the Act
of 2013.  In Yogesh Neema & Ors. v. State of Madhya Pradesh (2016)
6 SCC 387, a two-Judge Bench, doubted the decision of Sree Balaji
Nagar Residential Assn. v. State of
Tamil Nadu (2015) 3 SCC 353
and referred the matter to a larger Bench.
3. Yet in another Civil Appeal No.20982 of 2017 arising out of
S.L.P. (C) No.2131 of 2016 (Indore Development Authority vs.
Shailendra (Dead) through Lrs. & Ors., 2018 SCC Online SC 100)
the matter was referred to a larger Bench on 7.12.2017.  The following
observations were made in Indore Development Authority (supra):
“19. It was also urged that this Court is also bound to prevent the
abuse of process of law.  The cases which have been concluded
are being revived.  In spite of not accepting the compensation
deliberately and statement are made in the Court that they do not
want to receive the compensation at any cost, and they are agitating
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the matter time and again after having lost the matters and when
proceedings are kept pending by interim orders by filing successive
petitions, the provisions of section 24 cannot be invoked by such
landowners.
20. There is already a reference made as to the applicability of
section 24 in SLP (C) No.10472/2008 – Yogesh Neema & Ors v.
State of M.P. & Ors. vide order dated 12.01.2016.  There are
several other issues arising which have been mentioned above
but have not been considered in Pune Municipal Corpn. (supra).
Thus, here is a case where the matter should be considered by a
larger Bench.  Let the matter be placed before Hon’ble the Chief
Justice of India for appropriate orders.”
4. In Indore Development Authority v. Shailendra (Dead) thr.
Lrs. & Ors. (supra), the bench consisting of one of us, namely, Arun
Mishra, J., Adarsh Kumar Goel, J. and Mohan M. Shantanagoudar, J.
has decided the matter, and the view taken is that in Pune Municipal
Corporation (supra), the Court did not consider several aspects as to
the interpretation of section 24 of the Act of 2013.  The decision mentioned
above was accepted unanimously by the three Judges. However, as
Pune Municipal Corporation (supra) was a judgment by a bench of
coordinate strength, two of us, namely, myself and Adarsh Kumar Goel,
J. opined that decision is per incuriam.  However, Mohan M.
Shantanagoudar, J. opined that it would be appropriate to refer the matter
to a larger Bench.  In the majority
opinion in Indore Development
Authority (supra), the questions formulated have been answered thus:
 “228. Our answers to the questions are as follows:
Q. No. I:- The word ‘paid’ in section 24 of the Act of 2013 has
the same meaning as ‘tender of payment’ in section 31(1) of the
Act of 1894. They carry the same meaning, and the expression
‘deposited’ in section 31(2) is not included in the expressions ‘paid’
in section 24 of the Act of 2013 or in ‘tender of payment’ used in
section 31(1) of the Act of 1894. The words ‘paid’/tender’ and
‘deposited’ are different expressions and carry different meanings
within their fold.
In section 24(2) of the Act of 2013 in the expression ‘paid,’ it is
not necessary that the amount should be deposited in Court as
provided in section 31(2) of the Act of 1894. Non-deposit of
  INDORE DEVELOPMENT AUTHORITY v.
            MANOHAR LAL & ORS. [ARUN MISHRA, J.]
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compensation in Court under section 31(2) of the Act of 1894
does not result in a lapse of acquisition under section 24(2) of the
Act of 2013. Due to the failure of deposit in Court, the only
consequence at the most in appropriate cases may be of a higher
rate of interest on compensation as envisaged under section 34 of
the Act of 1894 and not lapse of acquisition.
Once the amount of compensation has been unconditionally
tendered, and it is refused, that would amount to payment, and the
obligation under section 31(1) stands discharged, and that amounts
to the discharge of obligation of payment under section 24(2) of
the Act of 2013 also. It is not open to the person who has refused
to accept compensation, to urge that since it has not been deposited
in Court, the acquisition has lapsed. Claimants/landowners, after
refusal, cannot take advantage of their own wrong and seek
protection under the provisions of section 24(2).
Q. No. II:- The normal mode of taking physical possession under
the land acquisition cases is drawing of Panchnama as held in
Banda Development Authority (supra).
Q. No. III:- The provisions of section 24 of the Act of 2013, do
not revive barred or stale claims such claims cannot be entertained.
Q. No. IV:- Provisions of section 24(2) do not intend to cover the
period spent during litigation and when the authorities have been
disabled to act under section 24(2) due to the final or interim order
of a
court or otherwise, such period has to be excluded from the
period of five years as provided in section 24(2) of the Act of
2013. There is no conscious omission in section 24(2) for the
exclusion of a period of the interim order. There was no necessity
to insert such a provision. The omission does not make any
substantial difference as to legal position.
Q. No. V:- The principle of actus curiae neminem gravabit is
applicable, including the other common law principles for
determining the questions under section 24 of the Act of 2013.
The period covered by the final/ interim order by which the
authorities 196 have been deprived of taking possession has to be
excluded. Section 24(2) has no application where Court has
quashed acquisition.”
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Question Nos.2, 3, 4, and 5, which have been decided, did not
arise in Pune Municipal Corporation (supra).Question No.2 was
a general question with respect to the mode of taking possession
under the land acquisition cases.  Remaining question arose out
of Yogesh Neema (supra).
5. A three-Judge Bench of this Court on 21.2.2018 requested the
other benches to defer the hearing until a decision, one way or the other,
on the issue whether the matter should be referred to the larger Bench
or not.
6. A Division Bench presided by Adarsh Kumar Goel, J. on
22.2.2018 in Indore Development Authority v. Shyam Verma and Ors.,
(S.L.P. (C) No.9798 of 2016) considered it appropriate to refer the matter
to Hon’ble the Chief Justice of India to refer the issues to be resolved by
a larger Bench at the earliest.
7. On 22.2.2018, a Bench consisting of myself and Amitava Roy,
J. have in State of Haryana v. Maharana Pratap Charitable Trust
(Regd.) & Anr. (Civil Appeal No. 4835 of 2015) referred the matter to
the Hon’ble the Chief Justice of India to constitute an appropriate bench
for consideration of the larger issue. Thus, it is apparent that two-division
Benches, i.e., one consisting of myself and another consisting of Adarsh
Kumar Goel, J. referred the matter to Hon’ble the Chief Justice of India.
Hon’ble, the Chief Justice of India, considered it appropriate to constitute
a Constitution Bench to deal with all the issues in an apposite manner.
8. The case was listed before
a five-Judge Constitution Bench on
6.3.2018.  The Constitution Bench observed that it would consider all
the aspects including the correctness of the decision of Pune Municipal
Corporation (supra) and the other judgments following the said decision
as well as the judgments rendered in Indore Development Authority
(supra).  Thus, all the questions are kept open to be decided.  No particular
question has been referred to the larger bench.  After that, Hon’ble, the
Chief Justice of India has constituted this Bench to decide the reference.
9. Mr. Shyam Divan, Mr. Dinesh Dwivedi and Mr. Gopal
Sankarnarayanan, learned Senior Advocates on behalf of the respondents,
have raised a preliminary objection for recusal of one of us, namely;
Arun Mishra, J. on the ground that Constitution Bench consists of one of
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the Judges who were on a smaller panel and the correctness of the
opinion cannot be, thus, judged by the Constitution Bench independently,
as a final view has been expressed in Indore Development Authority
(supra) wherein the decision in Pune Municipal Corporation (supra)
has been held to be per incuriam.  Thus, the Judge who has decided the
matter in Indore Development Authority (supra) is pre-disposed to decide
the matter only in a particular way.  It was also submitted that there is
reasonable apprehension that the Judge may have some bias in dealing
with the matter by a larger Bench. As such, one of us, namely; Arun
Mishra, J. should recuse.  It was further submitted that a Judge could
not sit in appeal to adjudge his judgment.  The jurisdictions are primarily
corrective jurisdictions under the hierarchal system, and professional as
well as institutional integrity demands that the same person should not
be a Judge at both levels.  The Judge who has decided the matter may
be pre-disposed to support the previous reasoning and, in that case, it
would seem that he is or she is a Judge in his or her own cause.  The
learned Counsel for the respondents are of the view that the Indore
Development Authority (supra) is wrongly decided.  The Court or
Tribunal should be above unfairness or bias.  The Judge has to step
down, in case he cannot impart justice impartially.  The judge or judges
concerned should excuse themselves
and abstain from sitting in the case.
A Judge cannot hear an appeal against his/ her own decisions.
10. Per contra, Shri Tushar Mehta, Learned Solicitor General,
Shri Mohan Parasaran, Shri Anoop Chaudhary and Shri Vivek Tankha,
learned Senior Advocates submitted that there is no question of recusal
and as a matter of substance it is the practice of this Court that the
Judges who have decided the matter earlier or have referred it are made
part of the Bench. They have cited several decisions to the effect that
Judges who have delivered a Judgment in a three-Judges Bench formed
part of a five-Judges Bench or the larger Benches which decided the
matter.  The plea of bias or pre-disposition is not attracted in the matter
of judicial decisions.  The plea of bias or pre-disposition is based on
extra-judicial factors. What the Court is required to answer is only a
pure question of law, and there are occasions when Hon’ble, the Chief
Justice of India, has considered it appropriate to constitute an appropriate
bench having decided a case. Recusal of any Judge cannot be sought on
the ground that the decision rendered by him in a smaller bench has to
be considered by the larger bench.
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11. Learned Solicitor General submitted that a tendency is growing
in that as soon as important matters are listed, particular articles are
written in the newspapers concerning the Constitution of the bench or to
influence the decision on merits of a case. Newspaper articles are written
to influence Court.  The very independence of the judicial system is at
stake, if in this kind of scenario, recusal is sought by powerful lobbies,
and any recusal would be defeating the very oath of the office which a
Judge takes.
12. Shri Mohan Parasaran, learned Senior Counsel has also pointed
out that the practice of this Court makes the law, and the Judges who
have decided the matters in a smaller Bench have ordinarily formed
quorum of the larger Benches.  The question is of deciding the legal
principle.  In the Review jurisdiction and Curative Petitions; the same
Judge hears the matter. There is nothing wrong in case the Judges who
have heard the matter in smaller Benches form part of the larger bench.
There is no question of any pre-disposition in such matters or bias, and
as such, the decision rendered in smaller formation cannot be a ground
for seeking recusal.
13. The first question before us is whether a Judge who has
expressed an opinion in a smaller Bench and the case has been referred
to a larger Bench, because of the conflict of the opinion or otherwise,
can hear the matter in a larger bench.  For finding an answer to the
same, we have to look into the
practice of this Court.
14. Shri M.C. Setalvad, in his autobiography “My Life, Law and
other things” has referred in Chapter 12 the events between 1955 to
1969.  He has referred to one of the important decisions of this Court
delivered by S.R. Das, J., who was the then Acting Chief Justice.  It
was the Bengal Immunity case. In 1953, a bench presided over by
Chief Justice Sastri of which Justice Bhagwati was a member held that
State could impose sales tax on goods delivered for consumption in that
State, even though the sale was an inter-State sale as held in State of
Bombay v. United Motors India Ltd., 1953 SCR 1069 with Justice
Bose and Justice S.R. Das, Justice Bose delivered a dissenting judgment
and S.R. Das, J. as a Junior Judge had also expressed a contrary opinion
in another decision.
15 The same question arose in Bengal Immunity Co. Ltd. v. State
of Bihar, 1955 (2) S.C.R. 603, which came up when S.R. Das, J. was
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acting as the Chief Justice. S.R. Das, J. who held strong views on the
matter, had the matter placed before larger Bench of seven Judges,
including the two, Justice Bose and Justice Bhagwati, who had participated
in the earlier decision. Justice Bhagwati, who had formed part of the
majority in the United Motors case (supra), agreeing with the view of
Chief Justice Sastri, had reversed his former view, giving his reasons in
detail and held that earlier decision was erroneous.  Following are the
extracts from “My Life, Law and other things” by M.C. Setalvad :
      “One of the important decisions of the Supreme Court
delivered while S.R. Das was the Chief Justice, was the Bengal
Immunity Case. That case had an interesting history.  Article 286
of the Constitution (as it then stood) prohibited a State Legislature
from imposing sales tax on transactions of inter-State sales and
sales in the course of export.  The Article was not, however,
happily worded. In 1953, a Bench of the Supreme Court presided
over by Chief Justice Sastri, of which Justice Bhagwati was a
member, held that a State could impose sales tax on goods delivered
for consumption in that State, even though the sale was an inter-
State sale1. This decision was contrary to the express provision of
the Constitution that Parliament alone could authorise the imposition
of a tax on sales in the course of inter-State sales and was based
on an explanation to
Article 286(1)(a), which was not applicable.
Justice Bose had delivered a dissenting judgment, and S.R. Das
as a puisne judge had also expressed a contrary opinion in another
decision.
       The same question arose in Bengal Immunity Co. Ltd. v.
State of Bihar2 which came up when S.R. Das was acting as the
Chief Justice.  The Bengal Immunity Co. manufactured medicinal
products in Bengal and sold them all over India including Bihar.
The Company had no office or agent in Bihar but the Bihar sales
tax authorities sought to compel the Company to register as a
dealer in Bihar and pay sales tax on the ground that goods delivered
in Bihar for consumption in Bihar as a direct result of the sale
were liable to sales tax in Bihar even though the sale had taken
place in Bengal.  The view of the State of Bihar was in accordance
with the decision of the Supreme Court in the United Motors
1State of Bombay v. United Motors (India) Ltd., (1953) S.C.R. 1069.
2 (1955) 2 S.C.R. 603.
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Case but Das, who held strong views in the matter, had the matter
placed before a larger Bench of seven judges including two, Justice
Bose and Justice Bhagwati, who had participated in the earlier
decision.
    The matter was of vital importance to the States, because
under the view expressed by Chief Justice Sastri in the United
Motors Case, one State – the State in which goods had been
delivered for consumption as a direct result of the sale – would be
entitled to levy sales tax on such transactions, while, under the
other view, no State at all would be able to tax the goods, as the
transaction of sale would be an inter-State sale.  The Centre alone
could make a law for levying a sales tax on inter-State sales.
There is little doubt that the somewhat strained construction put
upon the Explanation to Article 286(1)(a) by Chief Justice Sastri
and the majority was due to the consideration that the sources of
revenue of the States under the Constitution which were already
slender should not be diminished by denying to the States the
opportunity of levying sales tax altogether in such cases.
     Notices were issued to all the States and many of them
intervened by their Advocates-General. N.C. Chatterjee appeared
for the Bengal Immunity Company, and Lal Narayanan Sinha,
then the Government Advocate of Bihar, appeared for the State
of Bihar. I intervened on behalf of the State of West Bengal.
Sikri, as the Advocate-General, represented the State of East
Punjab.
        At the outset arose the question whether the Supreme Court
could overrule its previous decision if it was satisfied that it was
erroneous. That was the first occasion on which the Court was
called upon to deal with this important question.
       The Court naturally considered the practice followed in other
final Courts of appeal.  The Privy Council had held that though it
was not absolutely bound to follow its earlier decisions it would
seldom differ from them in constitutional matters as they would
have been acted upon both by Governments and subjects.  The
United States Supreme Court had on a number of occasions
expressly overruled its previous decisions. The majority of the
3.In England the position has since changed; the House of Lords is no longer bound by
its own decisions.
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Supreme Court including Das preferred to follow the American
practice.  Das pointed out the difference between the position in
England where the House of Lords had held that it was bound by
its earlier decisions3 and India and observed:
       But, in a country governed by a federal constitution, such as
the United States of America and the Union of India are, it is by
no means easy to amend the Constitution, if an erroneous
interpretation is put upon it by this Court. An erroneous
interpretation to the Constitution may quite conceivably be
perpetuated or may at any rate remain unrectified for considerable
time to the great detriment to public well-being.  The considerations
adverted to in the decisions of the Supreme Court of America
quoted above are, therefore, apposite and apply in full force in
determining whether a previous decision of this Court should or
should not be disregarded or overruled  There is nothing in our
Constitution which prevents us from departing from a previous
decision if we are convinced of its error and its baneful effect on
the general interests of the public.
      He then proceeded to point out a number of circumstances
which made it necessary to set right what he considered to be the
harmful effects of the earlier decision which he believed to be
erroneous.  He ultimately formulated the governing principle in
these words:
    Reference is made to the doctrine of finality of judicial
decisions and it is pressed upon us that we should not reverse our
previous decision except in cases where a material provision of
law has been overlooked or where the decision has proceeded
upon the mistaken assumption of the continuance of a repealed or
expired statute and that we should not differ from a previous
decision merely because a contrary view appears to us to be
preferable. It is needless for us to say that we should not lightly
dissent from a previous pronouncement of this Court.  Our power
of review, which undoubtedly exists, must be exercised with due
care and caution and only for advancing the public well-being in
the light of the surrounding circumstances of each case brought
to our notice; but we do not consider it right to confine our power
within rigidly fixed limits, as suggested before us.
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      The minority, consisting of three Judges, did not, however,
accept this position.
    On the merits, the majority of the Court consisting of four
judges, including the acting Chief Justice, came to the conclusion
that the provisions of several parts of Article 286 made it clear
that it had to deal with different topics and one part could not be
projected or read into another.  The conclusion reached was that
the Explanation to clause (1) (a) could not be ultimately extended
to clause (2) either as an exception or as a proviso and read as
limiting the ambit of clause (2).  Until Parliament provided otherwise
by law in exercise of its powers under clause (2) of the Article, no
State could impose any tax on sales or purchases taking place in
the course of inter-State trade or commerce.  The decision of
Chief Justice Sastri to the extent that it decided to the contrary
could not be accepted as well-founded on principle or authority.
      The dissenting view was expressed in powerful opinions by
each of the three dissenting Judges.  They took the view that the
scheme of the Article was that it fixed the situs of the sales with
a view to avoid multiple taxation.  For that purpose, it divided
sales into two categories, “inside sales” and “outside sales”, and
enacted that a State cannot tax an outside sale.  When, in the
same context, the Explanation declared that a sale must be deemed
to have taken place in the State in which the goods are delivered
for
consumption, its purpose clearly was to take such sales out of
inter-State trade and stamp them with the character of inter-State
sales.
     The most powerful dissent was that delivered by Justice
Aiyar, whose judgment was the most exhaustive and the longest
of the judgments delivered by the various Judges.  One of the
notable judgments in the case was that of Justice Bhagwati who
had formed part of the majority in the United Motors case,
agreeing with the view of Chief Justice Sastri.  He reversed his
former view with skill, giving his reasons in detail.  He had the
courage to state that his opinion in the earlier decision “was clearly
erroneous and public interest demand the same should be
reversed.”
  (emphasis supplied)
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16. In M/s. Ujagar Prints and Ors. (II) v. Union of India &
Ors. (1989) 3 SCC 488, a Constitution Bench of this Court was constituted
consisting of R.S. Pathak, C.J., Sabyasachi Mukherji, S. Natarajan, M.N.
Venkatachaliah and S. Ranganathan, JJ.  The question which arose for
consideration was the correctness of the decision in Empire Industries
Ltd. v. Union of India (1985) 3 SCC 314, which was decided by a
Bench consisting of three-Judges, namely S. Murtaza Fazal Ali, S.
Varadarajan, and Sabyasachi Mukherji, JJ. Sabyasachi Mukherji, J.
delivered the judgment on his behalf and S. Murtaza Fazal Ali, J.
Varadarajan partly concurred.  The matter was referred to examine the
correctness of the view of Justice Sabyasachi Mukherji expressed for
the Court in Empire Industries Ltd. v. Union of India (supra).  The
view taken in the previous decision by Sabyasachi Mukherji, J., was
held to be good law.  It was a case where the correctness of the view
taken in Empire Industries case (supra) on certain aspects was doubted
by another Bench of this Court in M/s. Ujagar Prints v. Union of
India (1986) Supp. SCC 652.  Accordingly, the matter was referred to a
five-judge Bench. Sabyasachi Mukherji, J. was one of the members of
the Bench which affirmed his decision in the Empire Industries case
(supra).
17. There is yet another instance of a Constitution Bench which
comprised of Y.V. Chandrachud, C.J., P.N. Bhagwati, S. Murtaza Fazal
Ali, Amarendra Nath Sen, P. Balakrishna Eradi, JJ. in the matter of
Gyan Devi Anand v. Jeevan Kumar & Ors. (1985) 2 SCC 683, where
the question which arose was whether statutory tenancy is heritable.  In
Gyan Devi Anand (supra), the correctness of the decision in Ganpat
Ladha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573 came up for
consideration. The decision in Ganpat Ladha’s case had been overruled,
and Damadilal v. Parashram, (1976) 4 SCC 855 was affirmed.  The
Court has observed thus:
“35. In our opinion, the view expressed by this Court in Ganapat
Ladha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573 and the
observations made therein which we have earlier quoted, do not
lay down the correct law. The said decision does not properly
construe the definition of the ‘tenant’ as given in Section 5(11)(b)
of the Act and does not consider the status of the tenant, as defined
in the Act, even after termination of the commercial tenancy. In
our judgment in Damadilal v. Parashram, (1976) 4 SCC 855,
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this Court has correctly appreciated the status and the legal position
of a tenant who continues to remain in possession after termination
of the contractual tenancy. We have quoted at length the view of
this Court and the reasons in support thereof. The view expressed
by a seven Judge Bench of this Court in Dhanapal Chettiar v.
Yesodai Ammal, (1979) 4 SCC 214 and the observations made
therein which we have earlier quoted, lend support to the decision
of this Court in Damadilal case. These decisions correctly lay
down that the termination of the contractual tenancy by the landlord
does not bring about a change in the status of the tenant who
continues to remain in possession after the termination of the
tenancy by virtue of the provisions of the Rent Act. A proper
interpretation of the definition of tenant in the light of the provisions
made in the Rent Acts makes it clear that the tenant continues to
enjoy an estate or interest in the tenanted premises despite the
termination of the contractual tenancy.”
18. Justice P.N. Bhagwati concurred with the view and overruled
his own decision in Ganpat Ladha’s case (supra).  Justice Bhagwati
has observed thus:
 “3. On November 6, 1960 the appellant-landlord filed a suit for
eviction which is now before us. On August 30, 1962, the first
date of hearing, the issues were framed. On June 18, 1963, the
trial court decreed the suit on the following findings: the notice to
quit was valid and duly served; the arrears of
rent were properly
demanded under Section 12(2) of the Act; the demand was not
complied with in accordance with law by the tenant within a month
of the demand; the case was governed by the provisions of Section
12(3)(b) and not by the provisions of Section 12(3)(a) because a
dispute about the fixation of standard rent was still pending when
the notice demanding standard rent was given; nevertheless, the
tenant was not entitled to the protection of Section 12(3)(b), since
he had not paid the rent regularly in accordance with the conditions
under which the protection of Section 12(3)(b) could be given to
him.”
19. Also, in the landmark decision of Kesavananda Bharati v.
the State of Kerala (1973) 4 SCC 225, the earlier view held by this
Court in Sajjan Singh v. State of Rajasthan 1965 AIR SC 845 was
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overruled though some of the Hon’ble Judges in the two cases were
common.
20. In Hyderabad Industries Limited and Anr. v. Union of India
& Ors. (1995) 5 SCC 338, a three-Judge Bench of this Court consisting
of A.M. Ahmadi, C.J., S.P. Bharucha, and K.S. Paripoornan, JJ. doubted
the correctness of the view taken in Khandelwal Metal & Engineering
Works v. Union of India (1985) 3 SCC 620 and referred the matter to
a larger Bench.  The larger bench consisted of S.P. Bharucha, B.N.
Kirpal, S. Rajendra Babu, Syed Mohammed Quadri, and M.B. Shah, JJ.
They answered the reference reported in Hyderabad Industries Ltd.
& Anr. v. Union of India & Ors. (1999) 5 SCC 15.  It is significant to
note that S.P. Bharucha, J., who had doubted the correctness of the
decision and referred the matter to a Constitution Bench, has overruled
the earlier view on certain grounds.
21. In M/s. Cloth Traders (P) Ltd. v. Additional C.I.T., Gujarat-
I, (1979) 3 SCC 538, a three-Judge Bench consisting of P.N. Bhagwati,
D.A. Desai, and A.D. Koshal, JJ. decided the question of inter-corporate
dividends.  The correctness of this decision was taken up for consideration
before a Constitution Bench of Y.V. Chandrachud, C.J., P.N. Bhagwati,
Amarendra Nath Sen, D.P. Madon, M.P. Thakkar, JJ. in Distributors
(Baroda) Pvt. Ltd. v. Union of India & Ors., (1986) 1 SCC 43, in
which the decision in M/s. Cloth Traders (P) Ltd. v. Addl. CIT, Gujarat
(supra), was
overruled.  P.N. Bhagwati, J. delivered the judgment for
the Constitution Bench.  He was also the author of the earlier judgment
in M/s. Cloth Traders (P) Ltd. v. Addl. CIT, Gujarat (supra), which
had been overruled. This Court has observed thus:
“19. But, even if in our view the decision in M/s. Cloth Traders
(P) Ltd. v. Additional C.I.T., Gujarat-I, (1979) 3 SCC 538 is
erroneous, the question still remains whether we should overturn
it. Ordinarily we would be reluctant to overturn a decision given
by a Bench of this Court, because it is essential that there should
be continuity and consistency in judicial decisions and law should
be certain and definite. It is almost as important that the law should
be settled permanently as that it should be settled correctly. But
there may be circumstances where public interest demands that
the previous decision be reviewed and reconsidered. The doctrine
of stare decisis should not deter the Court from overruling an
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earlier decision, if it is satisfied that such decision is manifestly
wrong or proceeds upon a mistaken assumption in regard to the
existence or continuance of a statutory provision or is contrary to
another decision of the Court. It was Jackson, J. who said in his
dissenting opinion in Massachusetts v. United States 333 US 611:
“I see no reason why I should be consciously wrong today because
I was unconsciously wrong yesterday.” Lord Denning also said
to the same effect when he observed in Ostime v. Australian
Mutual Provident Society (1960) AC 549: “The doctrine of
precedent does not compel Your Lordships to follow the wrong
path until you fall over the edge of the cliff.” Here we find that
there are overriding considerations which compel us to reconsider
and review the decision in Cloth Traders case (supra). In the
first place, the decision in Cloth Traders case (supra) was rendered
by this Court on May 4, 1979 and immediately thereafter, within a
few months, Parliament introduced Section 80-AA with
retrospective effect from April 1, 1968 with a view to overriding
the interpretation placed on Section 80-M in Cloth Traders case
(supra). The decision in Cloth Traders case (supra) did not
therefore hold the field for a period of more than a few months,
and it could not be said that any assessee was misled into acting
to its detriment on the basis of that decision. There was no decision
of this Court in regard to the interpretation of sub-section (1) of
Section 80-M prior to the decision in Cloth Traders case (supra),
and there was therefore no authoritative pronouncement of this
Court on this question of interpretation on which an assessee could
claim to rely for making its fiscal arrangements. The only decision
in regard to the interpretation of sub-section (1) of Section 80-M
given by any High Court prior to the decision in Cloth Traders
case (supra), was that of the Gujarat High Court in Addl. CIT v.
Cloth Traders Pvt. Ltd. (1974) 97 ITR 140 (Guj.) and that decision
took precisely the same view which we are inclined to accept in
the present case. It is therefore difficult to see how any assessee
can legitimately complain that any hardship or inconvenience would
be caused to it if the decision in Cloth Traders case was
overturned by us. If despite the decision of the Gujarat High Court
in Addl. CIT v. Cloth Traders Pvt. Ltd.  the assessee proceeded
on the assumption, now found to be erroneous, that the Gujarat
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High Court decision was wrong and the deduction permissible
under sub-section (1) of Section 80-M was liable to be calculated
with reference to the full amount of dividend received by the
assessee, the assessee can have only itself to blame. Knowing
fully well that the Gujarat High Court had decided the question of
interpretation of sub-section (1) of Section 80-M in favour of the
Revenue and there was no decision of this Court taking a different
view, no prudent assessee could have proceeded to make its
financial arrangements on the basis that the decision of the Gujarat
High Court was erroneous. Moreover, we find, for reasons we
have already discussed, that the decision in Cloth Traders case
is manifestly wrong because it has failed to take into account a
very vital factor, namely, that the deduction required to be made
under sub-section (1) of Section 80-M is not from the gross total
income but from “such income by way of dividends”. There is
also another circumstance which makes it necessary for us to
reconsider and review the decision in Cloth Traders case, and
that is the decision in Cambay Electric Supply Co. case (1978)
2 SCC 644. The decision in Cloth Traders case is inconsistent
with that in Cambay Electric Supply Co. case. Both cannot stand
together. If one is correct, the other must logically be wrong and
vice versa. It is therefore necessary to resolve the conflict between
these two decisions and
harmonise the law and that necessitates
an inquiry into the correctness of the decision in Cloth Traders
case. It is for this reason that we have reconsidered and reviewed
the decision in Cloth Traders case, and on such reconsideration
and review, we have come to the conclusion that the decision in
Cloth Traders case is erroneous and must be overturned.”
This Court has observed that law should be settled permanently
and that it should be settled correctly.  There may be circumstances
where public interest demands that the previous decision be reviewed
and reconsidered.  Thus, it is apparent that this is the consistent practice
of this Court that Judges who had rendered the earlier decision have
presided over or been part of the larger Bench.
22. Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of
Income Tax, Bombay North, Ahmedabad (1963) Supp. 1 SCR 871
came up for consideration in Keshav Mills Co. Ltd. v. Commissioner
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of Income Tax, Bombay North, Ahmedabad (1965) 2 SCR 908.  The
Constitution Bench comprised of seven-Judges in Keshav Mills Co.
Ltd., M. Hidayatullah, J. was part of the Bench in both the matters.
There are other instances which have been cited indicating the practice
of this Court.
23. Shri Mohan Parasaran learned Senior Counsel has submitted
that practice of the Court is the law of the Court and binding and should
normally be adhered to in the absence of rules to the contrary. He referred
to the decision of Jamal Uddin Ahmad v. Abu Saleh Najmuddin, (2003)
4 SCC 257, which held thus:
“18. Sub-section (1) of the abovesaid provision required the
election petition being presented to the Election Commission. Sub-
section (2) provided for the election petition being delivered to the
Secretary to the Commission or to such other officer as may be
appointed by the Election Commission or even being sent by
registered post and delivered to the Secretary to the Commission
or the officer appointed so as to be deemed to have been presented
to the Election Commissioner. While “High Court” has been
substituted in place of Election Commission in sub-section (1),
sub-section (2) of the erstwhile Section 81 has been deleted without
re-enacting a corresponding provision. The reason is more than
obvious. Parliament knew that so far as the Election Commission
is concerned, it was considered necessary to trust only the
Secretary to the Commission or such other officer as may
be
appointed by the Election Commission entrusted with the
responsibility of receiving the election petition presented to the
Election Commission. So far as the High Court is concerned, such
a provision was not required to be enacted into the Act. Jurisdiction
to try an election petition has been conferred on the High Court in
place of the Election Tribunal. The High Court is a constitutional
court which was pre-existing. It is a court of record and exercises
plenary powers. The High Court being a pre-existing judicial
institution also had rules, directions and practice already existing
and prevalent and governing the reception of documents presented
to it; the same would apply to election petitions. Cursus curiae
est lex curiae — The practice of the Court is the law of the
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Court. Every Court is the guardian of its own records and the
master of its own practice; and where a practice has existed, it is
convenient, except in cases of extreme urgency and necessity, to
adhere to it, because it is the practice, even though no reason can
be assigned for it; for an inveterate practice in law generally stands
upon principles that are founded in justice and convenience. (See
Broom’s Legal Maxims, 10th Edn., p. 82.) Even in the absence of
Chapter VIII-A in the Gauhati High Court Rules there would have
been nothing wrong in the High Court or the Chief Justice
authorizing any of its officers to receive the election petition
presented to it so as to enable exercise of the jurisdiction conferred
on the High Court by Chapter II of the Act. The Gauhati High
Court thought it proper to incorporate Chapter VIII-A in its Rules
in view of the amendment made in Chapter II of the Act.”
   (emphasis supplied)
24. Shri Mohan Parasaran, learned Senior Counsel has also relied
upon the decision of the Supreme Court of United States in John Patrick
LITEKY v. United States, 510 U.S. 540 (1994), where the question of
recusal based on “extrajudicial source” doctrine came up for
consideration.  The Supreme Court of United States held:
“[5] [6] [7]  The judge who presides at a trial may, upon completion
of the evidence, be exceedingly ill disposed towards the defendant,
who has been shown to be a thoroughly
reprehensible person.
But the judge is not thereby recusable for bias or prejudice, since
his knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are
indeed sometimes (as in a bench trial) necessary to completion of
the judge’s task.  As Judge Jerome Frank pithily put it: “Impartiality
is not gullibility.  Disinterestedness does not mean child-like
innocence.  If the Judge did not form judgments of the actors in
those courthouse dramas called trials, he could never render
decisions.”  In re J.P. Linahan, Inc., 138 F.2d 650, 654 (CA2
1943).  Also not subject to deprecatory characterization as “bias”
or “prejudice” are opinions held by judges as a result of what they
learned in earlier proceedings.  It has long been regarded as normal
and proper for a judge to sit in the same case upon its remand,
and to sit in successive trials involving the same defendant.
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[8] [9]  It is wrong in theory, though it may not be too far off the
mark as a practical matter, to suggest, as many opinions have,
that “extrajudicial source” is the only basis for establishing
disqualifying bias or prejudice.  It is the only common basis, but
not the exclusive one, since it is not the exclusive reason a
predisposition can be wrongful or inappropriate.  A favourable or
unfavourable predisposition can also deserve to be characterized
as “bias” or “prejudice” because, even though it springs from the
facts adduced or the events occurring at trial, it is so extreme as
to display clear inability to render fair judgment.  (That explains
what some courts have called the “pervasive bias” exception to
the “extrajudicial source” doctrine.  See, e.g., Davis v. Board of
School Comm’rs of Mobile County, 517 F.2d 1044, 1051 (CA5
1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188
(1976).
[13] [14] For all these reasons, we think that the “extrajudicial
source” doctrine, as we have described it, applies to § 455(a).  As
we have described it, however, there is not much doctrine to the
doctrine.  The fact that an opinion held by a judge derives from a
source outside judicial proceedings is not a necessary condition
for “bias or prejudice” recusal, since predisposition developed during
the course of a trial will sometimes (albeit rarely) suffice.  Nor is
it a sufficient condition for “bias or prejudice” recusal, since some
opinions acquired
outside the context of judicial proceedings (for
example, the judge’s view of the law acquired in scholarly reading)
will not suffice.  Since neither the presence of an extrajudicial
source necessarily establishes bias, nor the absence of an
extrajudicial source necessarily precludes bias, it would be better
to speak of the existence of a significant (and often determinative)
“extrajudicial source” factor, than of an “extrajudicial source”
doctrine, in recusal jurisprudence.
[15] [16] [17] [18]  The facts of the present case do not require
us to describe the consequences of that factor in complete detail.
It is enough for present purposes to say the following:  First, judicial
rulings along almost never constitute a valid basis for a bias or
partiality motion.  See United States v. Grinnell Corp., 384 U.S.,
at 583, 86 S.Ct., at 1710.  In and of themselves (i.e., apart from
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surrounding comments or accompanying opinion), they cannot
possibly show reliance upon an extrajudicial source; and can only
in the rarest circumstances evidence the degree of favouritism or
antagonism required (as discussed below) when no extrajudicial
source is involved.  Almost invariably, they are proper grounds for
appeal, not for recusal.  Second, opinions formed by the judge on
the basis of facts introduced or events occurring in the course of
the current proceedings or of prior proceedings, do not constitute
a basis for a bias or partiality motion unless the display a deep-
seated favouritism or antagonism that would make fair judgment
impossible.  Thus, judicial remarks during the course of a trial that
are critical or disapproving of, or even hostile to, counsel the parties,
or their cases, ordinarily do not support a bias or partiality challenge.
They may do so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they reveal such a high
degree of favouritism or antagonism as to make fair judgment
impossible.  An example of the latter (and perhaps of the former
as well) is the statement that was alleged to have been made by
the District Judge in Berger v. United States, 255 U.S. 22, 41
S.Ct.230, 65 L.Ed.481 (1921), a World War I espionage case
against German-American defendants; “One must have a very
judicial mind, indeed, not [to be] prejudiced against the German
Americans” because their “hearts are reeking with disloyality.”
Id., at 28 (internal quotation marks omitted).  Not establishing
bias or partiality, however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the
bounds of what imperfect men and women, even after having
been confirmed as federal judges, sometimes display.  A judge’s
ordinary efforts at courtroom administration – even a stern and
short-tempered judge’s ordinary efforts at courtroom
administration – remain immune.
The term “extrajudicial source,” though not the interpretive doctrine
bearing its name, has appeared in only one of our previous cases.
United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct.1698, 16
L.Ed.2d 778 (1966).  Respondents in Grinnell alleged that the
trial judge had a personal bias against them, and sought his
disqualification and a new trial under 28 U.S.C. § 144.  That
statute, like § 455(b)(1), requires disqualification for “bias or
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prejudice”.  In denying respondents’ claim, the Court stated that
“[t]he alleged bias and prejudice to be disqualifying must stem
from an extrajudicial source and result in an opinion on the merits
on some basis other than what the judge learned from his
participation in the case.” 384 U.S., at 583, 86 S.Ct., at 1710.”
In LITEKY (supra), it has been held that it is desirable to have the
same Judge in the successive causes.  They have to be faithful to oath.
Following observation has been made:
“To take a common example, litigants (like petitioners here) often
seek disqualification based upon a judge’s prior participation, in a
judicial capacity, in some related litigation.  Those allegations are
meritless in most instances, and their prompt rejection is important
so the case can proceed.  Judges, if faithful to their oath, approach
every aspect of each case with a neutral and objective disposition.
They understand their duty to render decisions upon a proper record
and to disregard earlier judicial contacts with a case or party.
Some may argue that a judge will feel the “motivation to vindicate
a prior conclusion” when confronted with a question for the second
or third time, for instance, upon trial after a remand.  Ratner,
Disqualification of Judges for Prior Judicial Actions, 3 How.L.J.
228, 229-230 (1957).  Still, we accept the notion that the
“conscientious judge will, as far as possible, make himself aware
of his biases of this character, and, by
that very self-knowledge,
nullify their effect.”  In re J.P. Linahan, Inc., 138 F.2d 650, 652
(CA2 1943).  The acquired skill and capacity to disregard
extraneous matters is one of the requisites of judicial office.  As a
matter of sound administration, moreover, it may be necessary
and prudent to permit judges to preside over successive causes
involving the same parties or issues.  See Rules Governing Section
2255 Proceedings for the United States District Courts, Rule 4(a)
(“The original motion shall be presented promptly to the judge of
the district court who presided at the movant’s trial and sentenced
him, or, if the judge who imposed sentence was not the trial judge,
then it shall go to the judge who was in charge of that part of the
proceedings being attacked by the movant”).  The public character
of the prior and present proceedings tends to reinforce the resolve
of the judge to weigh with care the propriety of his or her decision
to hear the case.
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Out of this reconciliation of principle and practice comes the
recognition that a judge’s prior judicial experience and contacts
need not, and often do not, give rise to reasonable questions
concerning impartiality.”
    (emphasis supplied)
25. In State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513,
this Court has laid down that prejudging question of law, policy or
discretion, Judge is not disqualified to hear a case.  It was held as under:
“25. Bias may be defined as a preconceived opinion or a
predisposition or predetermination to decide a case or an issue in
a particular manner, so much so that such predisposition does not
leave the mind open to conviction. It is, in fact, a condition of
mind, which sways judgments and renders the judge unable to
exercise impartiality in a particular case.
26. Bias has many forms. It may be pecuniary bias, personal
bias, bias as to subject-matter in dispute, or policy bias etc. In the
instant case, we are not concerned with any of these forms of
bias. We have to deal, as we shall presently see, a new form of
bias, namely, bias on account of judicial obstinacy.
27. Judges, unfortunately, are not infallible. As human beings, they
can commit mistakes even in the best of their judgments reflective
of their hard labour, impartial things and objective assessment of
the problem put before them. In the matter of interpretation of
statutory provisions or while assessing the evidence in
a particular
case or deciding questions of law or facts, mistakes may be
committed bona fide which are corrected at the appellate stage.
This explains the philosophy behind the hierarchy of courts. Such
a mistake can be committed even by a judge of the High Court
which are corrected in the letters patent appeal, if available.
28. If a judgment is overruled by the higher court, the judicial
discipline requires that the judge whose judgment is overruled must
submit to that judgment. He cannot, in the same proceedings or in
collateral proceedings between the same parties, rewrite the
overruled judgment. Even if it was a decision on a pure question
of law which came to be overruled, it cannot be reiterated in the
same proceedings at the subsequent stage by reason of the fact
that the judgment of the higher court which has overruled that
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judgment, not only binds the parties to the proceedings but also
the judge who had earlier rendered that decision. That judge may
have his occasion to reiterate his dogmatic views on a particular
question of common law or constitutional law in some other case
but not in the same case. If it is done, it would be exhibitive of his
bias in his own favour to satisfy his egoistic judicial obstinacy.
29. As pointed out earlier, 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 predisposed or suffers from prejudices or
has a biased mind, he disqualifies himself from acting as a judge.
But Frank, J. of the United States in Linahan, In re, 138 F 2d 650
says:
“If, however, ‘bias’ and ‘partiality’ be defined to mean the total
absence of preconceptions in the mind of the judge, then no one
has ever had a fair trial and no one will. The human mind, even at
infancy, is no blank piece of paper. We are born with
predispositions…. Much harm is done by the myth that, merely
by … taking the oath of office as a judge, a man ceases to be
human and strips himself of all predilections, becomes a passionless
thinking machine.”
[See also Griffith and Street, Principles of Administrative Law
(1973 Edn.), p. 155; Judicial Review of Administrative Action
by de Smith (1980 Edn.), p. 272; II Administrative Law Treatise
by Davis (1958
Edn.), p. 130.]
30. These remarks imply a distinction between prejudging of facts
specifically relating to a party, as against preconceptions or
predispositions about general questions of law, policy or discretion.
The implication is that though in the former case, a judge would
disqualify himself, in the latter case, he may not. But this question
does not arise here and is left as it is.”
               (emphasis supplied)
26. In Asok Pande v. Supreme Court of India, (2018) 5 SCC
341, question of allocation of work and roster of Benches came up for
consideration.  The Court has laid down that Chief Justice has to consider
specialization of each Judge and other factors.  The Court observed:
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“10. Recently, a Constitution Bench of this Court in Campaign
for Judicial Accountability and Reforms v. Union of India,
(2018) 1 SCC 196, held that the principle which was noticed and
recognised in the decision of this Court in State of Rajasthan v.
Prakash Chand, (1998) 1 SCC 1, in relation to the jurisdiction
and authority of the Chief Justice of the High Court “must apply
proprio vigore as regards the power of the Chief Justice of India”.
The position of the Chief Justice was reiterated with the following
observations: (SCC pp. 199-200, paras 7 & 8)
“7. The aforesaid position though stated as regards the High
Court, we are absolutely certain that the said principle is
applicable to the Supreme Court. We are disposed to think so.
Unless such a position is clearly stated, there will be utter
confusion. Be it noted, this has been also the convention of this
Court, and the convention has been so because of the law. We
have to make it clear without any kind of hesitation that the
convention is followed because of the principles of law and
because of judicial discipline and decorum. Once the Chief
Justice is stated to be the Master of the Roster, he alone has
the prerogative to constitute Benches. Needless to say, neither
a two-Judge Bench nor a three-Judge Bench can allocate the
matter to themselves or direct the composition for constitution
of a Bench. To elaborate, there cannot be any direction to the
Chief Justice
of India as to who shall be sitting on the Bench
or who shall take up the matter as that touches the composition
of the Bench. We reiterate such an order cannot be passed. It
is not countenanced in law and is not permissible.
8. An institution has to function within certain parameters and
that is why there are precedents, rules and conventions. As
far as the composition of Benches is concerned, we accept
the principles stated in Prakash Chand, which were stated in
the context of the High Court, and clearly state that the same
shall squarely apply to the Supreme Court and there cannot be
any kind of command or order directing the Chief Justice of
India to constitute a particular Bench.”
12. Quite apart from the fact that the relief sought is contrary to
legal and constitutional principle, there is a fundamental fallacy in
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the approach of the petitioner, which must be set at rest. The
petitioner seeks the establishment of a binding precept under which
a three-Judge Bench in the Court of the Chief Justice must consist
of the Chief Justice and his two seniormost colleagues alone while
the Constitution Bench should consist of five seniormost Judges
(or, as he suggests, three “seniormost” and two “juniormost”
Judges). There is no constitutional foundation on the basis of which
such a suggestion can be accepted. For one thing, as we have
noticed earlier, this would intrude into the exclusive duty and
authority of the Chief Justice to constitute Benches and to allocate
cases to them. Moreover, the petitioner seems to harbour a
misconception that certain categories of cases or certain courts
must consist only of the seniormost Judges in terms of
appointment. Every Judge appointed to this Court under Article
124 of the Constitution is invested with the equal duty of adjudicating
cases which come to the Court and are assigned by the Chief
Justice. Seniority in terms of appointment has no bearing on which
cases a Judge should hear. It is a settled position that a judgment
delivered by a Judge speaks for the Court (except in the case of
a concurring or dissenting opinion). The Constitution makes a
stipulation in Article 124(3) for the appointment of Judges of the
Supreme Court from the High Courts, from the Bar and from
amongst distinguished jurists. Appointment to the Supreme Court
is conditioned upon the fulfilment of the qualifications prescribed
for the holding of that office under Article 124(3). Once appointed,
every Judge of the Court is entitled to and in fact, duty-bound, to
hear such cases as are assigned by the Chief Justice. Judges
drawn from the High Courts are appointed to this Court after long
years of service. Members of the Bar who are elevated to this
Court similarly are possessed of wide and diverse experience
gathered during the course of the years of practice at the Bar. To
suggest that any Judge would be more capable of deciding
particular cases or that certain categories of cases should be
assigned only to the seniormost among the Judges of the Supreme
Court has no foundation in principle or precedent. To hold otherwise
would be to cast a reflection on the competence and ability of
other Judges to deal with all cases assigned by the Chief Justice
notwithstanding the fact that they have fulfilled the qualifications
mandated by the Constitution for appointment to the office.
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14. The Chartered High Courts of Allahabad, Bombay, Calcutta
and Madras have a long history of over a hundred and fifty years.
Each of them has marked its sesquicentennial. Many High Courts
are not far behind in vintage. Some are of a recent origin. Over
the course of their judicial history, High Courts have evolved
conventions in matters governing practice and procedure. These
conventions provide guidance to the Chief Justice in the allocation
of work, including in the constitution of Benches. The High Courts
periodically publish a roster of work under the authority of the
Chief Justice. The roster indicates the constitution of Benches,
Division and Single. The roster will indicate the subject-matter of
the cases assigned to each Bench. Different High Courts have
their own traditions in regard to the period for which the published
roster will continue, until a fresh roster is notified. Individual Judges
have their own strengths in terms of specialisation. The Chief
Justice of the High Court has to bear in mind the area of
specialisation of each Judge, while deciding upon the allocation of
work. However, specialisation is one of several aspects which
weigh with the Chief Justice. A newly appointed Judge may be
rotated in a variety of assignments to enable the Judge to acquire
expertise in diverse branches of law. Together with the need for
specialisation, there is a need for Judges to have a broadbased
understanding
of diverse areas of law. In deciding upon the
allocation of work and the constitution of Benches, Chief Justices
have to determine the number of Benches which need to be
assigned to a particular subject-matter keeping in view the inflow
of work and arrears. The Chief Justice of the High Court will
have regard to factors such as the pendency of cases in a given
area, the need to dispose of the oldest cases, prioritising criminal
cases where the liberty of the subject is involved and the overall
strength, in terms of numbers, of the Court. Different High Courts
have assigned priorities to certain categories of cases such as
those involving senior citizens, convicts who are in jail and women
litigants. These priorities are considered while preparing the roster.
Impending retirements have to be borne in mind since the
assignment given to a Judge who is due to demit office would
have to be entrusted to another Bench when the vacancy arises.
These are some of the considerations which are borne in mind.
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The Chief Justice is guided by the need to ensure the orderly
functioning of the Court and the expeditious disposal of cases.
The publication of the roster on the websites of the High Courts
provides notice to litigants and lawyers about the distribution of
judicial work under the authority of the Chief Justice. This Court
was constituted in 1950. In the preparation of the roster and in the
distribution of judicial work, some of the conventions which are
adopted in the High Courts are also relevant, subject to
modifications having regard to institutional requirements.
15. Underlying the submission that the constitution of Benches
and the allocation of cases by the Chief Justice must be regulated
by a procedure cast in iron is the apprehension that absent such a
procedure the power will be exercised arbitrarily. In his capacity
as a Judge, the Chief Justice is primus inter pares: the first among
equals. In the discharge of his other functions, the Chief Justice
of India occupies a position which is sui generis. Article 124(1)
postulates that the Supreme Court of India shall consist of a Chief
Justice of India and other Judges. Article 146 reaffirms the position
of the Chief Justice of India as the head of the institution. From
an institutional perspective the Chief Justice is placed at the helm
of the Supreme Court. In the allocation of cases and the constitution
of Benches the Chief Justice has an exclusive prerogative. As a
repository of constitutional
trust, the Chief Justice is an institution
in himself. The authority which is conferred upon the Chief Justice,
it must be remembered, is vested in a high constitutional
functionary. The authority is entrusted to the Chief Justice because
such an entrustment of functions is necessary for the efficient
transaction of the administrative and judicial work of the Court.
The ultimate purpose behind the entrustment of authority to the
Chief Justice is to ensure that the Supreme Court is able to fulfil
and discharge the constitutional obligations which govern and
provide the rationale for its existence. The entrustment of functions
to the Chief Justice as the head of the institution, is with the
purpose of securing the position of the Supreme Court as an
independent safeguard for the preservation of personal liberty.
There cannot be a presumption of mistrust. The oath of office
demands nothing less.”
    (emphasis supplied)
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Thus, rendering a decision on any issue of law and the corrective
procedure of it cannot be said to be ground for recusal of a Judge;
otherwise, no Judge can hear a review, curative petition, or a reference
made to the larger bench.
27. There may not be even one Judge in this Court who has not
taken a view one way or the other concerning Section 24 of the Act of
2013, either in this Court or in the High Court.  If the submission is
accepted, no Judge will have the power to decide such a matter on the
judicial side.  We have to deal with the cases every day in which similar
or somewhat different questions are involved concerning the same
provision.  For having taken a view once, if recusal is to be made, it
would be very difficult to get a Judge to hear and decide a question of
law.  We have to correct the decision, apply the law, independently interpret
the provisions as per the fact situation of the case which may not be
germane in the earlier matter.  A judgment is not a halting-place, it is
stepping stone.  It is not like a holy book which cannot be amended or
corrected. It may also work to the advantage of all concerned if a Judge
having decided the matter either way is also a member of the larger
bench. A Judge who had rendered any decision in a smaller combination
is not disqualified from being part of a larger Bench when a reference is
made to the larger bench. Rather, it is a consistent practice prevailing
in
various High Courts as well as of this Court to include the same Judge/
Judges in larger Benches.  Shri Mohan Parasaran, learned senior counsel
has referred to Rule 8 of Delhi High Court Rules contained in Chapter
3; Part C which reads as under:
“8. Judge or Judges who refer a case shall ordinarily sit on
the bench which considers the reference – The Judges or a
Bench by whom any question or case is referred shall ordinarily
be members of the Division Bench or Full Bench, as the case
may be appointed to consider such question or case.”
The rule provides that a Judge who referred a case has to sit on
the larger Bench to consider the reference. In the present case also, the
reference has been made by me and my recusal has been sought.  Thus,
based on the consistent practice, we find that no ground for recusal is
made out.
28. Recusal has been prayed for on the ground of legal pre-
disposition. Where recusal is sought on the ground, various questions
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arise for consideration. Firstly, legal pre-disposition is the outcome of a
judicial process of interpretation, and the entire judicial system exists for
refining the same. There is absolutely nothing wrong in holding a particular
view in a previous judgment for or against a view canvassed by a litigant.
No litigant can choose, who should be on the Bench. He cannot say that
a Judge who might have decided a case on a particular issue, which may
go against his interest subsequently or is part of a larger Bench should
not hear his case.  Furthermore, if a party or his Counsel can at length
argue on the question of recusal of the Judge before him, he can also
successfully question the correctness of a judgment rendered by him.  A
litigant has got the right to make arguments which suit his cause before
a Judge/Judges having taken a contrary view earlier. Moreover, if it is
open to one litigant to seek recusal and recusal is permitted, then the
right has to be given to the opposite party to seek recusal of a Judge who
may have decided a case against his interest. In case it is permitted to
either side, that would end judicial independence. Then parties will be
choosing Benches to their liking. In that case, the Judges holding a view
can be termed to be disqualified.  In case the submission of recusal is
accepted, the Judges having either side view, cannot hear the matter
and have to recuse from hearing.  In that case to find neutral Judges
would be difficult
to find and that would be subvert to the very concept
of independent judicial system.  If litigants are given the right to seek
recusal of a judge on the ground that in a smaller Bench, a view has
been taken by the Judge, the correctness of which has to be decided by
the larger Bench, which includes the same Judge, then on a parity of
reasoning recusal might be sought on the ground of the judge having
taken a view one way or the other even in a different case in which
similar issues are involved if the judge has decided similar issues earlier,
in the same Court or in a different Court.  This would open the flood
gates of forum shopping.  Recusal upon an imagined apprehension of
legal pre-disposition would, in reality amount to acceding to the request
that a Judge having a particular view and leanings in favour of the view
which suits a particular litigant, should man the Bench. It would not only
be allowing Bench hunting but would also be against the judicial discipline
and will erode the confidence of the common man for which the judicial
system survives.
29. The question that comes to the mind is whether one of us
should recuse in order to prevent the embarrassment caused to a Judge
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by a member of the Bar, by seeking his recusal. Recusal would be the
easiest way to solve it. On the other hand, a larger question arises.  If
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.
30. The entire judicial system is based on sound constitutional
principles. The roster making power is bestowed on the Chief Justice of
India so that litigants are not able to choose the Judges before whom
they have to argue a matter, and he is a constitutional functionary who
has been enjoined with this task at the highest pedestal to exercise the
power of roster making.  He is the repository of faith.  Once he has
exercised his power, it is not for the Judges to choose.  As per their oath,
they have to discharge their duties without fear and favour and in a
dispassionate manner without any ill will, bias towards litigants, or a
cause. The question which arises is whether merely delivering a judgment
of which correctness is to be examined, would disqualifying a Judge
from being part of the larger Bench.  The answer to the question has to
be in the negative as there is a consistent practice of this Court which
has evolved that the Judges who have rendered a decision earlier in
smaller combination, have also formed part of the larger Bench, and
there are umpteen occasions as mentioned above when Judges have
overruled their own view. In LITEKY (supra), the United States Supreme
Court has held that rather it may be advantageous to have them on a
Bench hearing the matter as judgments are rendered after hearing the
arguments of learned counsel for the parties. There is always a scope to
further develop the law and to correct the errors, and this can better be
done by having Judges on the Bench, who have earlier rendered
judgments with respect to the subject-matter to which of the parties the
view taken suits is not relevant.
31. 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.  It is the test
of the ability of the judicial system to withstand such onslaught made
from every nook and corner. Any recusal in the circumstances is ruled
out, such prayer strengthens the stern determination not to succumb to
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any such pressure and not to recuse on the ground on which recusal
sought because for any reason, such a prayer is permitted, even once, it
would tantamount to cowardice and give room to big and mighty to destroy
the very judicial system.  Moreover, recusal in such unjustified
circumstances, would become the norm.
32. It was vehemently urged by learned senior counsel on behalf
of the respondents that they may feel embarrassed in arguing a proposition
of law which has been dealt with in the Indore Development Authority
elaborately. We find that given that arguments on recusal, spilling for
over a day, could be made vociferously, in a belligerent fashion and with
utmost ability, the submission that the learned counsel would feel diffident
in arguing a proposition of law on merits, is difficult to accept.  We feel
that there is no dearth of talent in this Court to argue a matter most
effectively even against the tide. The lawyers have compelled this Court
time and again to change its views and to refine the law. This Court is
known for not a particular view but for refining the law and that has
been done with the help, ability and legal ingenuity of the lawyers to
convince this Court with aplomb to correct its view. That is how the
process goes on as the entire system exists for the people of this country.
Under the guise of that, a reasonable man should not have even an iota
of doubt as to the impartiality of the Tribunal. If recusal is made, it would
tantamount to giving room to unscrupulous litigant to have a Judge of
their choice who can share the views which are to be canvassed by
them. No such right can be given to any person under the aforesaid
guise; there is no cause for any apprehension. There is no room to
entertain the same. The plea cannot be termed anything other than Bench
hunting, if it is said that until and unless the one which suits a litigant is
found the matters are not to be argued.
33. It also passes comprehension whether in a Constitution Bench,
consisting of five Judges, prayer for recusal of a Judge who has taken a
particular view earlier, is justified? The Bench consists of five Judges.
Each Judge may have his own view. They would not succumb to a view
held by one of the judges. They may also have their own view in the
matter.  Are they also to be disqualified? In case the petitioner’s prayer
is to be allowed, then they may want a Bench of 5:0 in their favour or 4
in favour and 1 against or 3 in favour and 2 against. That is not how the
system can survive.  The very idea of seeking recusal is inconceivable
and wholly unjustified, and the prayer cannot be acceded to.
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34. The decision in Supreme Court Advocates-on-Record
Association & Anr. v. Union of India (recusal matter), (2016) 5 SCC
808, has been referred to. Recusal of Justice Khehar (as His Lordship
then was) was sought from the Constitution Bench. The principles have
been summarised by this Court. The first principle which this Court has
discussed is the impartiality of a Judge. It has been observed by Justice
Chelameswar that the first principle is that the Judge should be impartial.
Merely having a legal opinion has no connection with impartiality. It may
be within the purview of the legal correctness of the opinion. The second
test is Latin maxim nemo judex in re sua i.e., no man shall be a Judge
in his own cause. A judgment rendered by a Judge is not in his own
cause. Grant Hammond, a former Judge of the Court of Appeal of  New
Zealand has in his book ‘Judicial Recusal’, which has been referred to,
observed that English Common Law on recusal was both simple and
highly constrained; a Judge could only be disqualified for a direct pecuniary
interest or consanguinity, affinity, friendship or enmity with a party or
because he was or had been a party’s advocate. The Court has discussed
the matter thus:
“12. Grant Hammond, a former Judge of the Court of Appeal of
New Zealand and an academician, in his book titled Judicial
Recusal traced out principles on the law of recusal as developed
in England in the following words:
“The
central feature of the early English common law on recusal
was both simple and highly constrained: a Judge could only be
disqualified for a direct pecuniary interest. What would today
be termed ‘bias’, which is easily the most controversial ground
for disqualification, was entirely rejected as a ground for recusal
of Judges, although it was not completely dismissed in relation
to jurors.
This was in marked contrast to the relatively sophisticated canon
law, which provided for recusal if a Judge was suspected of
partiality because of consanguinity, affinity, friendship or enmity
with a party, or because of his subordinate status towards a
party or because he was or had been a party’s advocate.”
He also pointed out that in contrast in the United States of America,
the subject is covered by legislation.
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13. Dimes v. Grand Junction Canal, (1852) 3 HLC 759, is one
of the earliest cases where the question of disqualification of a
Judge was considered. The ground was that he had some pecuniary
interest in the matter. We are not concerned with the details of
the dispute between the parties to the case. Lord Chancellor
Cottenham heard the appeal against an order of the Vice-
Chancellor and confirmed the order. The order went in favour of
the defendant Company. A year later, Dimes discovered that Lord
Chancellor Cottenham had shares in the defendant Company. He
petitioned the Queen for her intervention. The litigation had a long
and chequered history, the details of which are not material for
us. Eventually, the matter reached the House of Lords. The House
dismissed the appeal of Dimes on the ground that setting aside of
the order of the Lord Chancellor would still leave the order of the
Vice-Chancellor intact as Lord Chancellor had merely affirmed
the order of the Vice-Chancellor. However, the House of Lords
held that participation of Lord Cottenham in the adjudicatory
process was not justified. Though Lord Campbell observed: (Dimes
case, ER p. 315)
“… No one can suppose that Lord Cottenham could be, in the
remotest degree, influenced by the interest he had in this
concern: but, my Lords, it is of the last importance that the
maxim that no man is to be a Judge in his own cause should be
held sacred. And that is not to be confined to a cause in which
he is a
party, but applies to a cause in which he has an interest.
… This will be a lesson to all inferior tribunals to take care not
only that in their decrees they are not influenced by their
personal interest, but to avoid the appearance of labouring under
such an influence.”
14. Summing up the principle laid down by the abovementioned
case, Hammond observed as follows:
“The ‘no-pecuniary interest’ principle as expressed in Dimes
requires a judge to be automatically disqualified when there is
neither actual bias nor even an apprehension of bias on the
part of that judge. The fundamental philosophical underpinning
of Dimes is therefore predicated on a conflict of interest
approach.”
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15. The next landmark case on the question of “bias” is R. v.
Gough, 1993 AC 646. Gough was convicted for an offence of
conspiracy to rob and was sentenced to imprisonment for fifteen
years by the trial court. It was a trial by Jury. After the conviction
was announced, it was brought to the notice of the trial court that
one of the jurors was a neighbour of the convict. The convict
appealed to the Court of Appeal unsuccessfully. One of the grounds
on which the conviction was challenged was that, in view of the
fact that one of the jurors being a neighbour of the convict presented
a possibility of bias on her part and therefore the conviction is
unsustainable. The Court of Appeal noticed that there are two
lines of authority propounding two different tests for determining
disqualification of a Judge on the ground of bias:
(1) “real danger” test; and
(2) “reasonable suspicion” test.
The Court of Appeal confirmed the conviction by applying the
“real danger” test.
16. The matter was carried further to the House of Lords. Lord
Goff noticed that there are a series of authorities which are “not
only large in number but bewildering in their effect”. After analysing
the judgment in Dimes, Lord Goff held: (Gough case, AC p. 661
F-G)
“In such a case, therefore, not only is it irrelevant that there
was in fact no bias on the part of the tribunal, but there is no
question of investigating, from an objective point of view,
whether there was any real likelihood of bias, or any reasonable
suspicion of bias, on the facts of the particular case. The nature
of the interest is such that public confidence in the administration
of justice requires that the decision should not stand.”
In other words, where a Judge has a pecuniary interest, no further
inquiry as to whether there was a “real danger” or “reasonable
suspicion” of bias is required to be undertaken. But in other cases,
such an inquiry is required and the relevant test is the “real danger”
test: (Gough case, AC pp. 661 G-H-662 A-B)
“… But [in other cases], the inquiry is directed to the question
whether there was such a degree of possibility of bias on the
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part of the tribunal that the court will not allow the decision to
stand. Such a question may arise in a wide variety of
circumstances. These include … cases in which the member
of the tribunal has an interest in the outcome of the proceedings,
which falls short of a direct pecuniary interest. Such interests
may vary widely in their nature, in their effect, and in their
relevance to the subject-matter of the proceedings; and there
is no rule … that the possession of such an interest
automatically disqualifies the member of the tribunal from sitting.
Each case falls to be considered on its own facts.”
17. The learned Judge examined various important cases on the
subject and finally concluded: (Gough case, AC p. 670 E-G)
“… Finally, for the avoidance of doubt, I prefer to state the
test in terms of real danger rather than real likelihood, to ensure
that the court is thinking in terms of possibility rather than
probability of bias. Accordingly, having ascertained the relevant
circumstances, the court should ask itself whether, having regard
to those circumstances, there was a real danger of bias on the
part of the relevant member of the tribunal in question, in the
sense that he might unfairly regard (or have unfairly regarded)
with favour, or disfavour, the case of a party to the issue under
consideration by him….”
18. Lord Woolf agreed with Lord Goff in his separate judgment.
He held: (Gough case, AC p. 673 F-G)
“… There is only one established special
category and that
exists where the tribunal has a pecuniary or proprietary interest
in the subject-matter of the proceedings as in Dimes v. Grand
Junction Canal. The courts should hesitate long before creating
any other special category since this will immediately create
uncertainty as to what are the parameters of that category
and what is the test to be applied in the case of that category.
The real danger test is quite capable of producing the right
answer and ensure that the purity of justice is maintained across
the range of situations where bias may exist.”
19. In substance, the Court held that in cases where the Judge
has a pecuniary interest in the outcome of the proceedings, his
disqualification is automatic. No further enquiry whether such an
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interest lead to a “real danger” or gave rise to a “reasonable
suspicion” is necessary. In cases of other interest, the test to
determine whether the Judge is disqualified to hear the case is the
“real danger” test.
20. The R. v. Bow Street Metropolitan Stipendiary Magistrate,
ex p  Pinochet Ugarte (No.2), (2000) 1 AC 119, added one
more category to the cases of automatic disqualification for a
Judge. Pinochet, a former Chilean dictator, was sought to be
arrested and extradited from England for his conduct during his
incumbency in office. The issue was whether Pinochet was entitled
to immunity from such arrest or extradition. Amnesty International,
a charitable organisation, participated in the said proceedings with
the leave of the Court. The House of Lords held that Pinochet did
not enjoy any such immunity. Subsequently, it came to light that
Lord Hoffman, one of the members of the Board which heard
Pinochet case, was a Director and Chairman of a company
(known as AICL) which was closely linked with Amnesty
International. An application was made to the House of Lords to
set aside the earlier judgment on the ground of bias on the part of
Lord Hoffman.
21. The House of Lords examined the following questions:
(i) Whether the connection of Lord Hoffman with Amnesty
International required him to be automatically disqualified?
(ii) Whether an enquiry into the question whether cause of Lord
Hoffman’s connection with
Amnesty International posed a real
danger or caused a reasonable apprehension that his judgment is
biased — is necessary?
(iii) Did it make any difference that Lord Hoffman was only a
member of a company associated with Amnesty International
which was in fact interested in securing the extradition of Senator
Pinochet?
22. Lord Wilkinson summarised the principles on which a Judge
is disqualified to hear a case. As per Lord Wilkinson: (Pinochet
case, AC pp. 132 G-H-133 A-C)
“The fundamental principle is that a man may not be a Judge
in his own cause. This principle, as developed by the courts,
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has two very similar but not identical implications. First it may
be applied literally: if a Judge is in fact a party to the litigation
or has a financial or proprietary interest in its outcome then he
is indeed sitting as a Judge in his own cause. In that case, the
mere fact that he is a party to the action or has a financial or
proprietary interest in its outcome is sufficient to cause his
automatic disqualification. The second application of the
principle is where a Judge is not a party to the suit and does
not have a financial interest in its outcome, but in some other
way his conduct or behaviour may give rise to a suspicion that
he is not impartial, for example because of his friendship with
a party. This second type of case is not strictly speaking an
application of the principle that a man must not be Judge in his
own cause, since the Judge will not normally be himself
benefiting, but providing a benefit for another by failing to be
impartial.
In my judgment, this case falls within the first category of case,
viz. where the Judge is disqualified because he is a Judge in
his own cause. In such a case, once it is shown that the Judge
is himself a party to the cause, or has a relevant interest in its
subject-matter, he is disqualified without any investigation into
whether there was a likelihood or suspicion of bias. The mere
fact of his interest is sufficient to disqualify him unless he has
made sufficient disclosure….”
And framed the question: (AC
p. 134B-C)
“… the question then arises whether, in non-financial litigation,
anything other than a financial or proprietary interest in the outcome
is sufficient automatically to disqualify a man from sitting as
Judge in the cause.”
  (emphasis supplied)
He opined that although the earlier cases have
“all dealt with automatic disqualification on the grounds of
pecuniary interest, there is no good reason in principle for so limiting
automatic disqualification”. (AC p. 135B)
23. Lord Wilkinson concluded that Amnesty International and its
associate company known as AICL, had a non-pecuniary interest
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established that Senator Pinochet was not immune from the process
of extradition. He concluded that: (Pinochet case, AC p. 135C-
D)
“… the matter at issue does not relate to money or economic
advantage but is concerned with the promotion of the cause, the
rationale disqualifying a Judge applies just as much if the Judge’s
decision will lead to the promotion of a cause in which the Judge
is involved together with one of the parties.”
  (emphasis supplied)
24. After so concluding, dealing with the last question, whether
the fact that Lord Hoffman was only a member of AICL but not
a member of Amnesty International made any difference to the
principle, Lord Wilkinson opined that: (Pinochet case, AC p. 132H-
133A)
even though a Judge may not have financial interest in the
outcome of a case, but in some other way his conduct or
behaviour may give rise to a suspicion that he is not impartial….
and held that: (AC p. 135 E-F)
“… If the absolute impartiality of the judiciary is to be
maintained, there must be a rule which automatically
disqualifies a Judge who is involved, whether personally or as
a Director of a company, in promoting the same causes in the
same organisation as is a party to the suit. There is no room
for fine distinctions….”
This aspect of the matter was considered in P.D. Dinakaran (1)
v. Judges Inquiry Committee, (2011) 8 SCC 380
25. From the above decisions, in our opinion, the following principles
emerge:
25.1. If a Judge has a financial interest in the outcome of a case,
he is automatically disqualified from hearing the case.
25.2. In cases where the interest of the Judge in the case is other
than financial, then the disqualification is not automatic but an
enquiry is required whether the existence of such an interest
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disqualifies the Judge tested in the light of either on the principle
of “real danger” or “reasonable apprehension” of bias.
25.3. The Pinochet case added a new category i.e. that the Judge
is automatically disqualified from hearing a case where the Judge
is interested in a cause which is being promoted by one of the
parties to the case.
26. It is nobody’s case that, in the case at hand, Justice Khehar
had any pecuniary interest or any other interest falling under the
second of the abovementioned categories. By the very nature of
the case, no such interest can arise at all.
27. The question is whether the principle of law laid down in
Pinochet case is attracted. In other words, whether Justice Khehar
can be said to be sharing any interest which one of the parties is
promoting. All the parties to these proceedings claim to be
promoting the cause of ensuring the existence of an impartial and
independent judiciary. The only difference of opinion between the
parties is regarding the process by which such a result is to be
achieved. Therefore, it cannot be said that Justice Khehar shares
any interest which any one of the parties to the proceeding is
seeking to promote.
28. The implication of Shri Nariman’s submission is that Justice
Khehar would be predetermined to hold the impugned legislation
to be invalid. We fail to understand the stand of the petitioners. If
such apprehension of the petitioners comes true, the beneficiaries
would be the petitioners only.
The grievance, if any, on this ground
should be on the part of the respondents.
29. The learned Attorney General appearing for the Union of
India made an emphatic statement that the Union of India has no
objection for Justice Khehar hearing the matter as a Presiding
Judge of the Bench.
30. No precedent has been brought to our notice, where courts
ruled at the instance of the beneficiary of bias on the part of the
adjudicator, that a judgment or an administrative decision is either
voidable or void on the ground of bias. On the other hand, it is a
well-established principle of law that an objection based on bias
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of the adjudicator can be waived. Courts generally did not entertain
such objection raised belatedly by the aggrieved party:
“The right to object to a disqualified adjudicator may be waived,
and this may be so even where the disqualification is statutory.
The court normally insists that the objection shall be taken as
soon as the party prejudiced knows the facts which entitle him
to object. If, after he or his advisors know of the disqualification,
they let the proceedings continue without protest, they are held
to have waived their objection and the determination cannot
be challenged.”
In our opinion, the implication of the above principle is that only a
party who has suffered or is likely to suffer an adverse adjudication
because of the possibility of bias on the part of the adjudicator
can raise the objection.
31. The significant power as described by Shri Nariman does not
inhere only to the members of the Collegium, but inheres in every
Judge of this Court who might be called upon to express his opinion
regarding the proposals of various appointments of the High Court
Judges, Chief Justices or Judges of this Court, while the members
of the Collegium are required to exercise such “significant power”
with respect to each and every appointment of the abovementioned
categories, the other Judges of this Court are required to exercise
such “significant power”, at least with respect to the appointments
to or from the
High Court with which they were earlier associated
with either as Judges or Chief Justices. The argument of Shri
Nariman, if accepted would render all the Judges of this Court
disqualified from hearing the present controversy. A result not
legally permitted by the “doctrine of necessity”.
Justice J.S. Khehar, in his opinion, has observed thus:
“57. The reason that was pointed out against me, for seeking my
recusal was, that I was a part of the 1 + 4 Collegium. But that
should have been a disqualification for Anil R. Dave, J. as well.
When he commenced hearing of the matters, and till 7-4-2015, he
suffered the same alleged disqualification. Yet, the objection raised
against me, was not raised against him. When confronted, Mr
Fali S. Nariman vociferously contested, that he had not sought
the recusal of Anil R. Dave, J. He supported his assertion with
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proof. One wonders, why did he not seek the recusal of Anil R.
Dave, J.? There is no doubt about the fact, that I have been a
member of the 1 + 4 Collegium, and it is likely that I would also
shortly become a Member of NJAC, if the present challenge raised
by the petitioners was not to succeed. I would therefore remain a
part of the selection procedure, irrespective of the process which
prevails. That however is the position with reference to four of us
(on the instant five-Judge Bench). Besides me, my colleagues on
the Bench — J. Chelameswar, Madan B. Lokur and Kurian
Joseph, JJ. would in due course be a part of the Collegium (if the
writ petitioners before this Court were to succeed), or alternatively,
would be a part of NJAC (if the writ petitioners were to fail). In
such eventuality, the averment of conflict of interest, ought to
have been raised not only against me, but also against my three
colleagues. But, that was not the manner in which the issue has
been canvassed. In my considered view, the prayer for my recusal
is not well founded. If I were to accede to the prayer for my
recusal, I would be initiating a wrong practice, and laying down a
wrong precedent. A Judge may recuse at his own, from a case
entrusted to him by the Chief Justice. That would be a matter of
his own choosing. But recusal at the asking of a litigating party,
unless justified, must never to be acceded to. For that would give
the impression, of the Judge had been scared out of
the case, just
by the force of the objection. A Judge before he assumes his
office, takes an oath to discharge his duties without fear or favour.
He would breach his oath of office, if he accepts a prayer for
recusal, unless justified. It is my duty to discharge my responsibility
with absolute earnestness and sincerity. It is my duty to abide by
my oath of office to uphold the Constitution and the laws. My
decision to continue to be a part of the Bench, flows from the
oath which I took, at the time of my elevation to this Court.
  (emphasis supplied)
Justice Lokur, in his opinion, has observed:
“60. In my respectful opinion, when an application is made for
the recusal of a Judge from hearing a case, the application is
made to the Judge concerned and not to the Bench as a whole.
Therefore, my learned brother Justice Khehar is absolutely correct
in stating that the decision is entirely his, and I respect his decision.
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65. The issue of recusal from hearing a case is not as simple as it
appears. The questions thrown up are quite significant and since
it appears that such applications are gaining frequency, it is time
that some procedural and substantive rules are framed in this
regard. If appropriate rules are framed, then, in a given case, it
would avoid embarrassment to other Judges on the Bench.”
It has been held that decision to recuse is that of the Judge
concerned, and unjustified pressure should never be allowed.
35. Shri Tushar Mehta, learned Solicitor General, has relied upon
the decision in Subrata Roy Sahara v. Union of India & Ors., (2014)
8 SCC 470. Recusal of the Bench was sought by way of filing a petition.
The embarrassment which is caused by such a prayer, concept of
correction of a mistake, if any, recognition of mistake and its rectification
have also been considered. This Court has observed:
 “7. Now the embarrassment part. Having gone through the
pleadings of the writ petition we were satisfied that nothing
expressed therein could be assumed as would humiliate or
discomfort us by putting us to shame. To modify an earlier order
passed by us for a mistake we may have committed, which is
apparent on the face of the record, is a jurisdiction we regularly
exercise under Article 137 of the Constitution of India. Added to
that, it is open to a party to file a curative petition as held by this
Court in Rupa Ashok Hurra
v. Ashok Hurra, (2002) 4 SCC
388. These jurisdictions are regularly exercised by us, when made
out, without any embarrassment. Correction of a wrong order
would never put anyone to shame. Recognition of a mistake, and
its rectification, would certainly not put us to shame. In our
considered view, embarrassment would arise when the order
assailed is actuated by personal and/or extraneous considerations,
and the pleadings record such an accusation. No such allegation
was made in the present writ petition. And therefore, we were
fully satisfied that the feeling entertained by the petitioner, that
we would not pass an appropriate order, if the order impugned
dated 4-3-2014 was found to be partly or fully unjustified, was
totally misplaced.”
36. In Subrata Roy Sahara (supra) this Court has also referred
to the decision of Mr. R.K. Anand’s case (supra) in which it has been
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observed that the path of recusal is very often a convenient and a soft
option as a Judge has no vested interest in doing a particular matter. It is
the Constitution of India which enjoins a Judge to duly and faithfully and
to the best of his ability, knowledge, and judgment, perform the duties of
his office without fear or favour. Affronts, jibes, and consciously planned
snubs should not deter us from discharging our onerous responsibility.
This Court has observed:
“10. We have recorded the above narration, lest we are accused
of not correctly depicting the submissions as they were canvassed
before us. In our understanding, the oath of our office required us
to go ahead with the hearing. And not to be overawed by such
submissions. In our view, not hearing the matter, would constitute
an act in breach of our oath of office, which mandates us to perform
the duties of our office, to the best of our ability, without fear or
favour, affection or ill will.
11. This is certainly not the first time when solicitation for recusal
has been sought by the learned counsel. Such a recorded
peremptory prayer was made by Mr R.K. Anand, an eminent
Senior Advocate, before the High Court of Delhi seeking the
recusal of Mr Justice Manmohan Sarin from hearing his personal
case. Mr Justice Manmohan Sarin while declining the request
made by Mr R.K. Anand, observed as under:
“The path of recusal is very often a convenient and a 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
favour, 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.”
The above determination of the High Court of Delhi was assailed
before this Court in R.K. Anand v. Delhi High Court, (2009) 8
SCC 106. The determination of the High Court whereby Mr Justice
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Manmohan Sarin declined to withdraw from the hearing of the
case came to be upheld, with the following observations: (SCC p.
192, para 263)
“263. The above passage, in our view, correctly sums up
what should be the court’s response in the face of a request
for recusal made with the intent to intimidate the court or
to get better of an ‘inconvenient’ Judge or to obfuscate
the issues or to cause obstruction and delay the proceedings
or in any other way frustrate or obstruct the course of
justice.”
  (emphasis supplied)
In fact, the observations of the High Court of Delhi and those of
this Court reflected exactly how it felt, when the learned counsel
addressed the Court at the commencement of the hearing. If it
was the learned counsel’s posturing antics, aimed at bench-hunting
or bench-hopping (or should we say, bench-avoiding), we would
not allow that. Affronts, jibes and carefully and consciously planned
snubs could not deter us from discharging our onerous responsibility.
We could at any time during the course of hearing walk out and
make way for another Bench to decide the matter, if ever we felt
that that would be the righteous course to follow. Whether or not
it would be better for another Bench to hear this case will emerge
from the conclusions, we will draw, in the course of the present
determination.
131. We shall now deal with the substance, and the import, of the
judgments relied upon. It is not the case of
the petitioner that we
have any connection with either the two Companies under
reference, or any other company/firm which constitutes the Sahara
Group. We may state, that neither of us has even a single share
with the two Companies concerned or with any other company/
firm comprising of the Sahara Group. In order to remove all
ambiguity in the matter we would further state, that neither of us,
nor any of our dependent family members, own even a single
share in any company whatsoever. Neither of us has been assisted
in this case, for its determination on merits by any law clerk, intern
or staff member, while hearing, dealing with or deciding the
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controversy. Nor has any assertion in this behalf been made
against us by the petitioner or his learned counsel. Accordingly,
the factual position, which was the basis of the decisions relied
upon by the learned counsel, is not available in the facts and
circumstances of this case. In the above view of the matter, it is
but natural to conclude, that none of the judgments relied upon by
the learned Senior Counsel for the petitioner, on the subject of
bias, are applicable to the facts and circumstances of this case.
We are satisfied that none of the disguised aspersions cast by the
learned Senior Counsel, would be sufficient to justify the invocation
of the maxim, that justice must not actually be done, but must also
appear to be done. As already noticed above, even though our
combination as a Bench, did not exist at the time, when the present
petition was filed, a Special Bench, with the present composition,
was constituted by the Hon’ble the Chief Justice, as a matter of
his conscious determination. No litigant can be permitted to
dissuade us in discharging the onerous responsibility assigned to
us by the Hon’ble the Chief Justice.
135. Dr. Rajeev Dhavan, learned Senior Counsel also accused
us of having a predisposition in respect of the controversy. This
predisposition, according to him, appeared to be on the basis of a
strong commitment towards the “other side”. This assertion was
repeated several times during the hearing. But, which is the other
side?
In terms of our order dated 31-8-2012 the only gainer on the
other side is the Government of India. The eighth direction of our
order dated 31-8-2012, reads as under: (SCC p. 172, para 326)
“326.8. SEBI (WTM) if, after the verification of the details
furnished, is unable to find out the whereabouts of all or
any of the subscribers, then the amount collected from such
subscribers will be appropriated to the Government of
India.”
              (emphasis supplied)
If the “other side”, is the Government of India, there is certainly
no substance in the aspersion cast by the learned counsel. Just
the above aspect of the matter is sufficient to burst the bubble of
all the carefully crafted insinuations, systematically offloaded, by
the learned counsel for effect and impact.
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137. The observations recorded in the above judgment in Jaswant
Singh v. Virender Singh, 1995 Supp (1) SCC 384, are fully
applicable to the mannerism and demeanour of the petitioner Mr
Subrata Roy Sahara and some of the learned Senior Counsel. We
would have declined to recuse from the matter, even if the “other
side”, had been a private party. For, our oath of office requires us
to discharge our obligations, without fear or favour. We therefore
also commend to all courts, to similarly repulse all baseless and
unfounded insinuations, unless of course, they should not be hearing
a particular matter, for reasons of their direct or indirect
involvement. The benchmark, that justice must not only be done
but should also appear to be done, has to be preserved at all costs.”
37. In R.K. Anand v. Registrar, Delhi High Court, (2009) 8
SCC 106, it was observed:
264. We are constrained to pause here for a moment and to
express grave concern over the fact that lately such tendencies
and practices are on the increase. We have come across instances
where one would simply throw a stone on a Judge (who is quite
defenceless in such matters!) and later on cite the gratuitous attack
as a ground to ask the Judge to recuse himself from hearing a
case in which he would be appearing. Such conduct is bound to
cause deep hurt to the Judge concerned but what is of far greater
importance is that it defies the very fundamentals of
administration
of justice. A motivated application for recusal, therefore, needs to
be dealt with sternly and should be viewed ordinarily as interference
in the due course of justice leading to penal consequences.”
38. In Kamini Jaiswal v. Union of India & Anr., (2018) 1 SCC
156, this Court has dealt with the matter of recusal thus:
“24. There is no conflict of interest in such a matter. In case a
Judge is hearing a matter and if he comes to know that any party
is unscrupulously trying to influence the decision-making or
indulging in malpractices, it is incumbent upon the Judge to take
cognizance of such a matter under the Contempt of Courts Act
and to deal with and punish such person in accordance with law
as that is not the conflict of interest but the purpose for which the
entire system exists. Such things cannot be ignored and recusal
of a Judge cannot be asked on the ground of conflict of interest, it
would be the saddest day for the judicial system of this country to
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ignore such aspects on the unfounded allegations and materials.
It was highly improper for the petitioner to allege conflict of interest
in the petition filed that the Hon’ble Chief Justice of India should
not hear on judicial side or allocate the matter on the administrative
side. It appears that in order to achieve this end the particular
request has been made by filing successive petitions day after the
other and prayer was made to avoid the Hon’ble Chief Justice of
India to exercise the power for allocation of cases which was
clearly an attempt at forum hunting and has to be deprecated in
the strongest possible words. Making such scandalous remarks
also tantamount to interfering with administration of justice, an
advocate cannot escape the responsibility on the ground that he
drafted the same in his/her personal capacity as laid down in
Shamsher Singh Bedi v. High Court of Punjab & Haryana,
(1996) 7 SCC 99. In Charan Lal Sahu v. Union of India, (1988)
3 SCC 255, this Court has observed that in a petition filed under
Article 32 in the form of PIL attempt of mudslinging against the
advocates, Supreme Court and also against the other constitutional
institutions indulged in by an advocate in a careless manner,
meaningless and as contradictory pleadings, clumsy allegations,
contempt was ordered to be drawn. The Registry was directed
not to entertain any PIL petition of the petitioner in future.
27. This Court considered various categories of forum
shopping
in Union of India v. Cipla Ltd., (2009) 8 SCC 106. Even making
allegations of a per se conflict of interest require the matter could
be transferred to another Bench, has also been held to be another
form of forum hunting. This Court has considered various decisions
thus: (SCC pp. 318-20, paras 146-155)
    “146. The learned Solicitor General submitted that Cipla was
guilty of forum shopping inasmuch as it had filed petitions in the
Bombay High Court, the Karnataka High Court and also an
affidavit in the Delhi High Court as a member of the Bulk Drug
Manufacturers Association and had eventually approached the
Allahabad High Court for relief resulting in the impugned judgment
and order dated 3-3-2004. It was submitted that since Cipla had
approached several constitutional courts for relief, the proceedings
initiated in the Allahabad High Court clearly amount to forum
shopping.
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     147. We are not at all in agreement with the learned Solicitor
General. Forum shopping takes several hues and shades and
Cipla’s petitions do not fall under any category of forum shopping.
     148. A classic example of forum shopping is when a litigant
approaches one Court for relief but does not get the desired relief
and then approaches another Court for the same relief. This
occurred in Rajiv Bhatia v. State (NCT of Delhi), (1999) 8 SCC
525. The respondent mother of a young child had filed a petition
for a writ of habeas corpus in the Rajasthan High Court and
apparently did not get the required relief from that Court. She
then filed a petition in the Delhi High Court also for a writ of
habeas corpus and obtained the necessary relief. Notwithstanding
this, this Court did not interfere with the order passed by the Delhi
High Court for the reason that this Court ascertained the views of
the child and found that she did not want to even talk to her adoptive
parents and therefore the custody of the child granted by the Delhi
High Court to the respondent mother was not interfered with.
The decision of this Court is on its own facts, even though it is a
classic case of forum shopping.
      149. In Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013)
15 SCC 790, this Court noted that jurisdiction in a court is not
attracted by the operation or creation of fortuitous circumstances.
In that case, circumstances were
created by one of the parties to
the dispute to confer jurisdiction on a particular High Court. This
was frowned upon by this Court by observing that to allow the
assumption of jurisdiction in created circumstances would only
result in encouraging forum shopping.
     150. Another case of creating circumstances for the purposes
of forum shopping was World Tanker Carrier Corpn. v. SNP
Shipping Services (P) Ltd., (1998) 5 SCC 310, wherein it was
observed that the respondent-plaintiff had made a deliberate
attempt to bring the cause of action, namely, a collision between
two vessels on the high seas within the jurisdiction of the Bombay
High Court. Bringing one of the vessels to Bombay in order to
confer jurisdiction on the Bombay High Court had the character
of forum shopping rather than anything else.
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      151. Another form of forum shopping is taking advantage of
a view held by a particular High Court in contrast to a different
view held by another High Court. In Ambica Industries v. CCE,
(2007) 6 SCC 769, the assessee was from Lucknow. It challenged
an order passed by the Customs, Excise and Service Tax Appellate
Tribunal (“CESTAT”) located in Delhi before the Delhi High Court.
CESTAT had jurisdiction over the State of Uttar Pradesh, NCT
of Delhi and the State of Maharashtra. The Delhi High Court did
not entertain the proceedings initiated by the assessee for want of
territorial jurisdiction. Dismissing the assessee’s appeal this Court
gave the example of an assessee affected by an assessment order
in Bombay invoking the jurisdiction of the Delhi High Court to
take advantage of the law laid down by the Delhi High Court or
an assessee affected by an order of assessment made at Bombay
invoking the jurisdiction of the Allahabad High Court to take
advantage of the law laid down by it and consequently evade the
law laid down by the Bombay High Court. It was said that this
could not be allowed and circumstances such as this would lead
to some sort of judicial anarchy.
       152. Yet another form of forum shopping was noticed in
Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501,
wherein it was held that successive bail applications filed by a
litigant ought to be heard by the same learned Judge, otherwise
an unscrupulous litigant would go on
filing bail applications before
different Judges until a favourable order is obtained. Unless this
practice was nipped in the bud, it would encourage unscrupulous
litigants and encourage them to entertain the idea that they can
indulge in forum shopping, which has no sanction in law and
certainly no sanctity.
       153. Another category of forum shopping is approaching
different courts for the same relief by making a minor change in
the prayer clause of the petition. In Udyami Evam Khadi
Gramodyog Welfare Sanstha v. State of U.P., (2008) 1 SCC
560, it was noticed by this Court that four writ applications were
filed by a litigant and although the prayers were apparently
different, the core issue in each petition centred round the recovery
of the amount advanced by the bank. Similarly, substituting some
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petitioners for others with a view to confer jurisdiction on a
particular court would also amount to forum shopping by that group
of petitioners.
        154. Finally and more recently, in Supreme Court
Advocates-on-Record Assn. v. Union of India (Recusal Matter),
(2016) 5 SCC 808, Khehar, J. noticed yet another form of forum
shopping where a litigant makes allegations of a perceived conflict
of interest against a Judge requiring the Judge to recuse from the
proceedings so that the matter could be transferred to another
Judge.
         155. The decisions referred to clearly lay down the principle
that the Court is required to adopt a functional test vis-à-vis the
litigation and the litigant. What has to be seen is whether there is
any functional similarity in the proceedings between one court
and another or whether there is some sort of subterfuge on the
part of a litigant. It is this functional test that will determine whether
a litigant is indulging in forum shopping or not.”
39. In Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC
280, this Court has considered derogatory remarks and efforts to destroy
the system. The relevant portions are extracted hereunder:
“12. This Court in M.B. Sanghi v. High Court of Punjab and
Haryana, (1991) 3 SCC 600, while examining a similar case
observed: (SCC p. 602, para 2)
“2. … The foundation of [judicial] system which is based on
the independence and impartiality of those
who man it will be
shaken if disparaging and derogatory remarks are made against
the presiding judicial officers with impunity. It is high time that
we realise that the much cherished judicial independence has
to be protected not only from the executive or the legislature
but also from those who are an integral part of the system. An
independent judiciary is of vital importance to any free society.”
13. In Asharam M. Jain v. A.T. Gupta, (1983) 4 SCC 125, while
dealing with the issue, this Court observed as under: (SCC p. 127,
para 3)
“3. … The strains and mortification of litigation cannot be
allowed to lead litigants to tarnish, terrorise and destroy the
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system of administration of justice by vilification of Judges. It
is not that Judges need be protected; Judges may well take
care of themselves. It is the right and interest of the public in
the due administration of justice that has to be protected.”
14. In Jennison v. Baker, (1972) 2 QB 52, All ER p. 1006d, it
was observed: (QB p. 66 H)
“… ‘The law should not be seen to sit by limply, while those
who defy it go free, and those who seek its protection lose
hope.’”
40. The decision in All India Institute of Medical Sciences v.
Prof. Kaushal K. Verma, (2015) 220 DLT 446 (W.P. [C] No.4103/
2014), rendered by one of us, Ravindra Bhat, J., has also been referred,
thus:
“25. Before ending this unusually prolix order, which can run into
the danger of self-vindication, the Court observes that requests
for recusal are to be based on reasonable apprehensions; they
cannot be speculative or fanciful suppositions. An observation that
needs to be emphasized is that recusals generally, and especially
those fuelled by unjustified demands can be burdensome on the
judges who are eventually called upon to decide the cause.
Whenever made, the concerned court or judge so charged is bound
to take it seriously, as it undermines what is the bedrock of justice
delivery- impartiality. To borrow the words of Beverely Mclachlin
(Chief Justice of Canada) (“Judging in a Democratic State”) :
“…judges are not living Oracles. They are human beings,
trained in the law, who struggle to
understand the situations
before them and to resolve them in accordance with the law
and their consciences.  And judges must learn to live with being
wrong. As human beings, judges learn early in their career to
deal with criticism. Every new judge dons the judicial robes
resolved never to make a mistake. And every new judge fails.
Decisions must sometimes be made without the opportunity
for full reflection. The law may not be entirely clear. The truth
may be elusive. In the result, even the best judges inevitably
are found to have erred. The errors are publicly identified by
appellate judges and laid plain for all to see. The fact that
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appellate judges themselves have been known to err may
provide only limited consolation.”
If one may add, the greater the experience of the judge, the more
acutely she or he is aware of her or his fallibility and the pitfalls of
acting on impulse or prejudice. The journey, which begins with
certainty, later leads to a path of many grey areas. Given that
language itself is an imperfect medium, words are but vessels
giving shape to ideas and that no human being is perfect, no judge
can claim to be perfect in communicating ideas. The emphasis on
a phrase here or an expression there, bereft of anything more,
would not ipso facto disclose a predilection, or pre-disposition to
decide in a particular manner.”
There is a concurring opinion thus:
“1. I have seen the draft of the order, prepared by my brother S.
Ravindra Bhat, J., on the request of recusal by the Division Bench
headed by him. I fully concur with the conclusions reached by
him and the reasoning leading thereto. I would only add that the
request for recusal by the Bench ignores the fact that it comprises
of two Judges each of whom have an independent mind to apply.
The presence of another Judge with equal say strengthens the
rigor of the judicial scrutiny and cannot be undermined.”
41. Mr. Shyam Diwan, learned senior counsel has referred to the
foreign Rules stating “what is at stake is the confidence which the courts
in a democratic society must inspire in the
public.  Accordingly, any
judge in respect of whom there is a legitimate reason to fear a lack of
impartiality must withdraw”.  In support of his submission, he has referred
to Section 47 of Title 28, Judiciary and Judicial Procedure, 1948 of United
States of America; and Rule 24(5)(b) of Rules of Court of the European
Union, stating that there is a statutory bar on any judge presiding over
cases where judgments delivered by him are to be adjudicated upon in
appeal.
42. The decisions and rules relating to the appeal against Chamber
Judge are not at all relevant. There is no appeal within the Supreme
Court. It has a totally different structure, and has its own corrective
mechanism, need not be gainsaid. There is no room for reasonable
apprehension to be entertained by the clientele of the respondent’s
counsel. There is no question of recusal on pre-disposition as to the legal
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issue or as to the relief to be granted, such an apprehension also is
baseless.  The ultimate test is that it is for the Judge to decide and to find
out whether he will be able to deliver impartial justice to a cause with
integrity with whatever intellectual capacity at his command and he is
not prejudiced by any fact or law and is able to take an independent
view.  The answer would lie in examining whether without having any
bias or without any pressure or not even irked by such a prayer for
recusal, can he decide the case impartially. In case the answer is that he
will be able to deliver justice to the cause, he cannot and must not recuse
from any case as the duty assigned by the Constitution has to be performed
as per the oath and there lies the larger public interest.  He cannot shake
the faith that the common man reposes in the judiciary as it is the last
hope for them.
43. Having surveyed the precedents cited at the Bar, and having
considered the arguments, it is my considered view that a judge rendering
a judgment on a question of law would not be a bar to her or his
participation if in a larger Bench if that view is referred for re-
consideration.  The previous judgment cannot constitute bias, or a pre-
disposition - nor can it seem to be such, so as to raise a reasonable
apprehension of bias.  Nor can expressions through a judgment (based
on the outcome of arguments in an adversarial process) be a “subject
matter” bias on the merits of a norm or
legal principle, or provisions.
The previous decisions and practice of this court have clearly shown
that there can be and is no bar as the respondents’ senior counsel argue.
Accepting the plea of recusal would sound a death knell to the independent
system of justice delivery where litigants would dictate participation of
judges of their liking in particular cases or causes.
44. Recusal is not to be forced by any litigant to choose a Bench.
It is for the Judge to decide to recuse. The embarrassment of hearing
the lengthy arguments for recusal should not be a compelling reason to
recuse.  The law laid down in various decisions has compelled me not to
recuse from the case and to perform the duty irrespective of the
consequences, as nothing should come in the way of dispensation of
justice or discharge of duty as a Judge and judicial decision-making.
There is no room for prejudice or bias. Justice has to be pure, untainted,
uninfluenced by any factor, and even decision for recusal cannot be
influenced by outside forces. However, if I recuse, it will be a dereliction
of duty, injustice to the system, and to other Judges who are or to adorn
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the Bench/es in the future. I have taken an informed decision after
considering the nitty-gritty of the points at issue, and very importantly,
my conscience. In my opinion, 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 (which
is nulli secundus) that has compelled me not to recuse.
O R D E R *
1.  We have gone through the draft opinion circulated by Arun
Mishra J. An application for recusal is dealt with- and has been dealt
with, in this case, by the concerned member of the Bench whose
participation is sought to be objected to.
2. The approach to be adopted by other members of the Bench to
this sensitive issue- in such cases, is best summarized in the view of
Justice Madan B. Lokur Supreme Court Advocates-on-Record-
Association and Ors. vs. Union of India 2016 (5) 808 where it was
stated as follows:
“In my respectful opinion, when an application is made for
the recusal of a judge from hearing a case, the application is
made to the concerned judge and not to the Bench as a whole.
Therefore, my learned brother Justice Khehar is absolutely
correct in stating that the decision is entirely his, and I
respect his decision.
539. In a detailed order pronounced in Court on its own
motion v. State and Ors. reference was
made to a decision of
the Supreme Court of the United States in Jewell Ridge Coal
Corporation v. Local No. 6167, United Mine Workers of
America 325 US 897 (1945), wherein it was held that a
complaint as to the qualification of a justice of the Supreme
Court to take part in the decision of a cause cannot properly
be addressed to the Court as a whole and it is the
responsibility of each justice to determine for himself the
propriety of withdrawing from a case.
540. This view was adverted to by Justice Rehnquist in
Hanrahan v. Hampton 446 US 1301 (1980) in the following
words:
* Ed. Note : Order passed by  Indira Banerjee,  Vineet Saran,  M.R. Shah,
                       and S. Ravindra Bhat, JJ.
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‘Plaintiffs-Respondents and their counsel in these cases have
moved that I be recused from the proceedings in this case for
the reasons stated in their 14-page motion and their five
appendices filed with the Clerk of this Court on April 3, 1980.
The motion is opposed by the state-Defendant Petitioners in
the action. Since generally the Court as an institution leaves
such motions, even though they be addressed to it, to the
decision of the individual Justices to whom they refer, see
Jewell Ridge Coal Corporation v. Mine Workers 325 U.S.
897 (1945) (denial of petition for rehearing) (Jackson, J.,
concurring), I shall treat the motion as addressed to me
individually. I have considered the motion, the Appendices,
the response of the state Defendants, 28 U.S.C. 455 (1976
ed. And Supp. II), and the current American Bar Association
Code of Judicial Conduct, and the motion is accordingly
denied.’
541. The issue of recusal may be looked at slightly differently
apart from the legal nuance. What would happen if, in a Bench
of five judges, an application is moved for the recusal of
Judge A and after hearing the application Judge A decides
to recuse from the case but the other four judges disagree
and express the opinion that there is no justifiable reason for
Judge A to recuse from the hearing? Can Judge A be
compelled to hear the case even though he/she is desirous of
recusing from the hearing? It is to get over such a difficult
situation that the application for
recusal is actually to an
individual judge and not the Bench as a whole.
542. As far as the view expressed by Justice Kurian Joseph
that reasons should be given while deciding an application
for recusal, I would prefer not to join that decision. In the
first place, giving or not giving reasons was not an issue be-
fore us. That reasons are presently being given is a different
matter altogether. Secondly, the giving of reasons is fraught
with some difficulties. For example, it is possible that in a
given case, a learned judge of the High Court accepts an
application for his/her recusal from a case and one of the
parties challenges that order in this Court. Upon hearing the
parties, this Court comes to the conclusion that the reasons
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given by the learned judge were frivolous and therefore the
order is incorrect and is then set aside. In such an event, can
this Court pass a consequential order requiring the learned
judge to hear the case even though he/she genuinely believes
that he/she should not hear the case.”
3. In view of the above, we are of the opinion that the view of
Mishra, J, to reject the application for recusal, is not a matter that can be
commented upon by us.
4. With respect to the observations by Mishra, J in his opinion,
regarding the legal principles applicable, we are of the considered view
that there is no legal impediment or bar to his participation to hearing the
reference on the merits in the present Bench.
5. We notice that his order has cited several previous instances
where judges who rendered decisions in smaller bench compositions,
also participated in larger bench formations when the reasoning (in such
previous decisions) was doubted, and the issue referred to larger benches,
for authoritative pronouncement.
6. For those and other reasons mentioned in the order of Mishra,
J, we concur with his reasoning and conclusions that no legal principle or
norm bars his participation in the present Bench which is to hear the
reference; the precedents cited and the practice of the court, point to
the contrary, i.e. that 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.
7.  For the above reasons, and having regard to the reasons
contained in Mishra, J’s order, outlining the rejection of the request for
his recusal, we are of the considered opinion that this Bench should
proceed to hear and decide the reference made to it, on its merits.
Devika Gujral
                Reference to be heard on merits by the Bench.