To recuse or not to recuse?

May 21 2014, 20:19 IST
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SummaryThe Supreme Court is witnessing a new alarming trend. Of late, it seems that parties are indulging in various pressure tactics to make tough judges withdraw from the cases where they think they would not get favourable orders.

The Supreme Court is witnessing a new alarming trend. Of late, it seems that parties are indulging in various pressure tactics to make tough judges withdraw from the cases where they think they would not get favourable orders. Coincidently, senior lawyers seem to be resorting to such practices when the senior judge on the bench is about to retire. Probably such an approach at that stage is likely to benefit their clients as the matter is heard almost afresh by a new bench. And the lawyers won’t have to appear before the retiring judge any more.

Recusals have been there in the past, but only when the judges were informed about the significant orders passed in the high courts or if they had some affiliations with any of the parties in the matter. But now recusal due to psychological pressures seems to be the emerging trend. Generally judges don’t succumb to such pressures, but then they are not ‘superhumans’.

The Sahara case is a classic example. Unable to bear the psychological pressure brought to bear on him by the Sahara counsel, Justice JS Khehar on May 6 recused himself from hearing not only the R20,000-crore refund case but all the Sahara cases that may even come up in the future before the apex court. The bench, which also had Justice KS Radhakrishnan (retired on May 14) as the presiding judge, had deprecated such “calculated psychological offensives and mind games adopted to seek recusal of judges”.

While seeking release of Roy, senior counsel Ram Jethmalani had told the bench that it would be embarrassing for him to canvass the submissions that would “discomfort and embarrass the judges”. Therefore, he suggested the bench to recuse itself as “his client” had apprehensions of prejudice. The judgment has put on record that “Rajeev Dhavan, came out all guns blazing, in support of his colleague, by posing a query: Has the Court made a mistake, serious enough, giving rise to a presumption of bias … It was difficult to understand what he meant. But seriously, in the manner Dhavan had addressed the court, it sounded like an insinuation. Jethmalani joined in to inform us, that the Bar (those sitting on the side he represented) was shell-shocked, that an order violating the petitioner’s rights under Article 21 of the Constitution of India, had been passed, and it did not seem to cause any concern to us … Dhavan, then

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