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Trend Of Litigants Seeking Judges’ Recusal Needs To Be Discouraged: Bombay HC [Read Judgment]

Nitish Kashyap
15 Sep 2017 10:21 AM GMT
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Taking a tough stand against the idea of litigants seeking recusals from judges alleging bias without any substantial reason, the Bombay High Court has cited judgments of the Supreme Court to elucidate why such arbitrary requests must be discouraged.

A bench of Justice SC Dharmadhikari and Justice PD Naik was hearing an income tax appeal tagged along with a criminal writ petition.

The respondent in the appeal as well as the writ petition is Manubhai Hargovind Patel. He submitted that he has no faith in the impartiality and integrity of Justice Dharmadhikari and that he has already requested the Chief Justice to assign the matter to another bench.

The bench referred to the case of Subrata Roy Sahara vs Union of India & Ors, in which Justice JS Khehar had approved the view taken by the Delhi High Court that a party cannot insist on a judge recusing himself.

Thereafter, it was observed: “This is a new trend emerging when Judges are challenged in the manner that has been repeatedly noted by the Hon'ble Supreme Court. A mere inconvenient question or a query and which is raised during the course of appreciation and appraisal of the legal and factual issues in a matter at hand and particularly in the nature of appeal should not result in a litigant being taken aback or, if taken aback, responding in this manner.”

The bench also noted that the Supreme Court had clarified that when a judge takes oath of office and in terms prescribed by the Constitution, implicit in that is there is no ill will, much less any enmity and when a judge is supposed to decide a case impartially, he has to be strict.

The bench further noted: “Such strictness is demanded by the very office to which a person is appointed as a Judge. Eventually, it is a constitutional office and the institution of judiciary is above all. The law is applicable to all, rich or poor, men or women. Thus, to all citizens cutting across their religion, caste, creed, race and sex. Therefore, it is the Constitution and the laws which a Judge is obliged to uphold and while upholding them, he has to invite the wrath of litigants and advocates frequently. The trend, which is now increasing, of Judges being called upon to recuse themselves, therefore, has to be deprecated and discouraged. It must be nipped in the bud.”

Justice Khehar’s recusal order in the NJAC case - Supreme Court Advocates-on-Record Association and another vs. Union of India is also referred to in the 21-page order. Justice Khehar had observed on similar lines that on mere objection by a party, or a request for recusal must never be acceded to, unless justified.

Interestingly, the order states that this is not the first time the respondent (MH Patel) has made such a request for recusal. He had filed an application alleging lack of faith and trust in the members of the Income Tax Appellate Tribunal. Some of the members had to recuse themselves, which led to an obvious delay in proceedings.

The court noted that such ploys and tactics are adopted by litigants to delay the obvious.

The court said: “If the delay is to their benefit, then, they can go to any extent so as not to invite an adverse order or anything contrary to their interest. It is that perception which is entertained by the litigants and that is how for a favourable verdict, they resort to every tactic in the book or even impermissible in law or unknown to fairness, equity and justice.”

Expressing surprise at the request for recusal considering that the party in person had never argued any cases for before Justice Dharmadhikari, the court rejected the request.

Thereafter, it admitted the appeal filed by the Commissioner of Income Tax, Department of Revenue, even though the party-in-person (MH Patel) argued that unless the original records are called for, it would not be proper for the high court to express any opinion in the appeal against the order of the appellate tribunal.

To accommodate MH Patel, the court decided to post the criminal writ petition as well as the appeal to October 9, as he was not prepared to argue the matter.

Read the Judgment Here

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