According to a statement issued by Chief Justice of India H.L. Dattu, Teesta Setalvad’s bail plea was transferred to a new Bench comprising of Justice Dipak Misra and Justice A.K. Goel after one of the Judges of the previous Bench consisting of Justice S.J. Mukhopadhaya and Justice N.V. Ramana directly recused himself.
Responding to the reports, M.K. Hanjura, Registrar of the Supreme Court said, "Whatever has been done has been done at the direct recusal of one of the Hon'ble judges of the previous bench. Assigning a case to a bench is in the administrative domain of the Hon'ble Chief Justice of India.” He however declined to disclose the name of the Judge who recused himself.
The Judges of the previous Bench had categorically stated earlier on February 18 that they had neither orally nor in writing conveyed their desire to recuse from the hearing.
Sources close to the judges said: “It is affirmative that one of the judges did not recuse nor did he have any idea that the matter was being shifted to another bench because his brother judge had recused. Usually, such things are always in the knowledge of both the judges on the bench. He has also not seen any letter of recusal.”
Customarily, Judges recuse in open court proceedings, but in this case, the fact that the bail plea had been shifted to a new bench only came to light after the cause list was issued. Further, there was no official statement issued by the Supreme Court registry on why the case was being listed before a new bench.
A statement issued by Advocate Prashant Bhushan gave enough clues to explain that the Judges should have recused themselves. He says,
“It has been brought to my notice that Mr. Narendra Modi was an invitee of and recently attended the weddings of the children of Justices Mukhopadhaya and Ramana, who are hearing the case of Teesta Setalvad. The allegation of Teesta in this case is that she is being hounded by the Gujarat Police since she had played a leading role in exposing the role of Modi in the Gujarat carnage of 2002 and is seeking accountability for it. In these circumstances the question has arisen whether it would be appropriate for these judges to hear this case.
The Principles for a judge recusing from a case have been laid down by the Supreme Court in the 1987 case of Ranjit Thakur, where the court laid down that when a judge asks the question whether he should recuse himself from a case, the correct principle is not to ask “Will I be biased?” but to put himself in the shoes of the litigant before him and ask, “Will the litigant before me have a reasonable apprehension of bias?”
The code of Conduct for judges framed in 1999, says that “Justice must not merely be done but it must also be seen to be done.” It further says that, “A judge shall practice a degree of aloofness consistent with the dignity of his office.” It further says that a judge shall not decide a matter in which a friend is concerned. A consistent reading of this code requires that a judge should not socialize with politicians unless they are his close personal friends, and if so they should not hear cases concerning them. A person in Teesta’s position can reasonably apprehend that Modi must have been invited to the weddings of the judges’ children because they are his personal friends and in which case, she can reasonably apprehend bias in this case. I therefore feel that this is a case where the judges would be well advised to recuse themselves from the case, in order to, as the code of conduct says, “reaffirm the people’s faith in the impartiality of the judiciary.”
The previous Bench had earlier stayed Teesta Setalvad and her husband’s arrest till February 19, urging the Gujarat Government lawyer to produce certain essential documents on 19th. Read the LiveLaw story here.
While hearing the plea on 19th, the new Bench had directed the Gujarat Police to refrain from arresting the duo in the case. The direction came while the bench reserved its judgment on a plea seeking anticipatory bail for the couple. Read the coverage of the Courtroom arguments here.
A Complaint was filed in January 2014, by former residents of Gulbarg Society, who had alleged that they were restrained from selling their property on the assurance that the NGOs would buy them. The promise was not fulfilled citing lack of funds. The Police had then booked Feroze Khan Pathan, Setalvad and others for allegedly usurping Rs 1.51 crore collected for a riot museum.