Day 3 Arguments

October 16th 2019

The second day of oral arguments before the new Bench was limited to the issue of whether Justice Arun Mishra should recuse himself from the bench. As may be recalled, some of the parties in the matter have objected to Justice Mishra’s presence on the ground that he is predisposed to the issues placed before the bench. The objection stems from his role as the presiding judge in Indore Development Authority, which is one of the decisions being re-examined by the present bench.

In today’s hearing, Sr. Adv. Shyam Divan, appearing for some of the respondents, concluded his submissions on the application seeking Justice Mishra’s recusal. Other than Shyam Divan, Sr. Adv. Gopal Sankaranarayanan appearing for some of the petitioners, also placed on record his objections. Thereafter, Solictor General Tushar Mehta as well as Additional Solicitor General Pinky Anand responded to these objections.

Objections based on international and domestic standards

Sr.Adv. Divan referred to a number of international standards to support his objection. Primarily, he referred to the rules of the European Court of Human Rights (ECHR). As per these rules, a judge who decides a case at the Chamber level is prohibited from taking part in the Grand Chamber proceedings for the same case, if it is referred.

He then sought to establish how the present proceedings are different from the typical cases envisaged under Article 145(3) of the Indian Constitution (Article 145 (3) states that if a matter involves a substantial question of the Constitution, it shall be referred to a Constitution Bench). Unlike the typical cases referred under Article 145 (3), the present proceedings involve the Bench having to determine the correctness of multiple views. Therefore, the analogy with ECHR is important, argued Divan.

Final v. Preliminary view

At this point, Justice Indira Banerjee observed that benches are generally set up on the basis of subject matter expertise. Given this, she wondered whether it was not likely that judges on any bench would have expressed an opinion on a certain subject matters/issues previously.

Sr. Adv. Divan sought to tackle this by noting the difference between a final view on an issue and a preliminary one. As per him, when an opinion is given after an extensive analysis of an issue, the same should be considered a “final view”. This has to be contrasted with a prima facie/preliminary opinion, where the judge would have given an opinion without any in-depth analysis of the issues. Thus, in case a judge has expressed a “final view”, there is a reasonable apprehension that they have a predisposition towards the issues when they encounter them later on. Sr. Adv. Divan implied that Justice Mishra had taken a final view in Indore Development Authority and therefore was predisposed towards the issues under consideration before the bench.

Absence of past instances

Sr. Adv. Gopal Sankaranarayanan also objected to Justice Mishra’s presence on the bench. He submitted that there have been 109 instances in the Supreme Court where a certain bench has declared a decision of another bench as per incuriam (a decision rendered without regard to the correct position of law), and subsequently a reference to a larger bench has been made to decide whether the per incuriam declaration was correct. Not even in one of these instances has the same judge who made the per incuriam declaration been on the larger bench, stated Adv. Sankaranarayanan.

Solicitor General Tushar Mehta argued that any requests for recusal were unsustainable. He submitted that not only a coordinate bench (a bench of same strength), but even a High Court bench can declare a Supreme Court judgment as per incuriam. Therefore the reference itself to the present bench was based on a legal fallacy, stated Tushar Mehta.

Even if it were not treated as a wrong step, he argued that a constitution bench is meant to develop the law on the subject and not correct either of the views before it.

Other than the Solicitor General, Additional Solicitor General Pinky Anand as well as Sr. Adv. Vivek Tankha (appearing for the Indore Development Authority) too made submissions in favour of Justice Mishra continuing on the Bench.

Sr. Adv. Tankha cited two sets of examples from the past where judges whose judgments were being reconsidered by a larger bench sat on those benches [1. Sajjan Singh & Kesavananda Bharati, and 2. Konkan Railway Corporation v. Mehul Construction Co. & Konkan Railway Corporation v. Rani Constructions Pvt.Ltd.].

Sr. Adv. Divan’s rejoinder

Sr. Adv. Divan made a brief rejoinder thereafter. He submitted that: 1. Although mere expression of a legal opinion would not count as  predisposition, in the present case a final judgment was given by Justice Mishra on the same issues before the bench. This creates a reasonable apprehension of bias; 2. On the examples given by Sr. Adv. Tankha, he said each case involved a different constitutional amendment and therefore, no question of recusal arose in them.

The bench thereafter adjourned the matter to October 23rd, 2019, when it will pronounce orders on whether Justice Mishra should recuse or not.