Five SC judges have recused themselves in Navlakha case. What would happen if all judges did so?

Since September 30, five judges of the Supreme Court have recused themselves from a case involving human rights activist Gautam Navlakha. The judges did not offer any reasons for withdrawing from the case.

Navlakha had been arrested in August last year along with four other activists after caste violence erupted in Bhima-Koregaon village of Maharashtra on January 2, 2018. Five other activists had been already arrested in June 2018 as part of the same investigation.

The police claimed that the Bhima-Koregan violence had been triggered by a meeting called the Elgar Parishad that had been held in Pune the day before. The meeting had been organised to commemorate the Battle of Bhima Koregaon in 1818 between the East India Company and the Peshwa rulers of the Maratha Confederacy. Many Dalits fought for the British in the battle against the Brahmin Peshwas. The police alleged that the arrested activists had helped organise the Elgar Parishad and that they had Maoist links.

Later, the police alleged that the arrested people have been part of a plot to assassinate Prime Minister Narendra Modi.

House arrest

Navlakha had been placed under house arrest in New Delhi after the Maharastra police produced a transit warrant to take him to Pune. The activist went to the Delhi High Court to challenge the transit remand that the police had been granted by a sessions court. Weeks later, in October, the High Court quashed the remand and freed Navalkha, stating that appropriate legal procedures had not been followed.

Navlakha went on to challenge the charges before the Bombay High Court. But the court last month refused to quash the case. However, it protected him from being arrested till October 4. Navlakha appealed this decision in the Supreme Court.

On September 30, the matter was placed before the bench headed by Chief Justice Ranjan Gogoi. But Gogoi recused himself and ordered the registry to place the matter before another bench.

On October 1, the case was placed before a bench headed by Justice NV Ramana, which also included Justices R Subhash Reddy and BR Gavai. This time, all three recused themselves from the case.

On Thursday, when the matter came up before a fresh bench headed by Justice Arun Mishra and consisting of judges Ravindra Bhat and Vineet Saran, Justice Bhat recused himself from the case.

However, the court assured the activist’s lawyers that the matter would be heard on Friday, when Navlakha’s protection against being arrested expires. The matter will be heard by a bench of Justices Arun Mishra and Deepak Gupta.

Recusal and rule of law

The concept of recusal has a long history both in the United Kingdom and the United States. The right of a judge to withdraw from a particular case is founded on the principle of natural justice, of which impartiality is an important aspect.

Australian jurist Alan Rose wrote in The Judicial Review in 1994 that the appearance of justice being delivered is fundamental to the maintenance of rule of law.

He said:

“Justice, and the appearance of that justice being delivered, are fundamental to the maintenance of the rule of law. Justice implies – consistency, in process and result – that is, treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness, by allowing parties the opportunity to prevent their case and to answer contrary allegations, and unbiased neutral decision making; dignified, careful and serious decision-making and an open and reviewable process.” 

Thus, a judge with any kind of interest in a case or whose presence could lead to bias is expected to withdraw from the case to ensure that the rule of law is maintained and the procedures established by law are followed properly.

Two kinds of recusal are possible. One is the automatic recusal, where a judge himself withdraws from the case. The second is when one of the parties points to possible bias or personal interest of the judge in the case and requests a recusal. In India, the prerogative of recusal is vested in the judge. No judge can be forced to withdraw from a case by another party.

Navlakha case

However, since the prerogative to recuse herself vests in the particular judge, she is not expected to reveal the reason for her recusal in the judicial order. Revealing the reasons in detail could lead to similar requests from parties in other cases, delaying the delivery of justice. There is also the possibility of the concept of recusal being misused by parties that may not like a particular judge handling their case.

Unfortunately, this process yields to speculation, especially if the matter at hand is sensitive. The Navlakha case is an example of this, as respected human rights activists pursued by the state have been branded in the media as “urban Maoists”, “anti-nationals” and “terrorists”. When the police action was opposed by the activists before the Supreme Court last year, the court refused to stay the investigation.

The case is also unusual because it is not often that five judges recuse themselves from a particular matter. It is true that it would be difficult for the chief justice as the master of the roster to ask for the consent of judges before placing cases before them. However, in the Navlakha case, Chief Justice Gogoi also recused himself from the matter. Why did he list the case before himself if he was about to recuse himself from it? It is to be noted that Navlakha’s lawyers did not ask for a recusal from any of the judges, not at least in open court.

If they all recuse

As an academic question, with so many recusals already, some have wondered what would happen should all the judges of the Supreme Court decide to recuse from a matter?

Such an event has never occurred in independent India and is highly unlikely. However, there are provisions in the books to cover such a situation.

Under Article 128 of the Constitution, the Chief Justice, with the consent of the President, can appoint a retired judge of the Supreme Court or a High Court to sit in and act as a judge. Unlike Article 127, which allows the Chief Justice to appoint a High Court judge as an ad hoc judge when there is no quorum in the Supreme Court, Article 128 does not talk about the necessity of quorum. Such an appointment is need-based.

So if a situation ever arises that all sitting judges recuse themselves from a matter, it is possible that retired judges could be asked to preside over the case.