SHAH AND S. RAVINDRA BHAT, JJ.] versus MANOHAR LAL & ORS. ETC.

[2019] 15 S.C.R. 1085

INDORE DEVELOPMENT AUTHORITY

MANOHAR LAL & ORS. ETC.

(Special Leave Petition (C) Nos.9036-9038 of 2016)

OCTOBER 23, 2019

[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,M.R. SHAH AND S. RAVINDRA BHAT, JJ.]

Justice Delivery System: Practice and Procedure – Recusalof judge – Whether Judge who has expressed an opinion in asmaller Bench and the case has been referred to larger Bench,because of the conflict of the opinion or otherwise, can hear thematter in larger bench – Held: Rendering decision on any issueof law and the corrective procedure of it cannot be said to be groundfor recusal of Judge; otherwise, no Judge can hear review,curative petition, or reference made to the larger bench – Judgewho had rendered any decision in smaller combination is notdisqualified from being part of larger Bench when reference ismade to the larger bench – Rather, it is consistent practiceprevailing in various High Courts as well as of Supreme Court toinclude the same Judge/Judges in larger Benches.(Arun Mishra, J.)

Justice Delivery System: Practice and Procedure – Recusalof judge prayed for on the ground of legal pre-disposition – Held:There is absolutely nothing wrong in holding particular view in aprevious judgment for or against view canvassed by litigant –No litigant can choose, who should be on the Bench – He cannotsay that Judge who might have decided case on particularissue, which may go against his interest subsequently or is part of alarger Bench should not hear his case – Furthermore, if party orhis Counsel can at length argue on the question of recusal of theJudge before him, he can also successfully question the correctnessof judgment rendered by him – If litigants are given the right toseek recusal of judge on the ground that in smaller Bench, aview has been taken by the Judge, the correctness of which has tobe decided by the larger Bench, which includes the same Judge,then on parity of reasoning recusal might be sought on the ground

Aof the judge having taken view one way or the other even in adifferent case in which similar issues were involved if the judge hasdecided similar issues earlier, in the same Court or in differentCourt – This would open the flood gates of forum shopping –Recusal upon an imagined apprehension of legal pre-dispositionwould, in reality amount to acceding to the request that JudgeBhaving particular view and leanings in favour of the view whichsuits particular litigant, should man the Bench – It would not onlybe allowing Bench hunting but would also be against the judicialdiscipline and will erode the confidence of the common man forwhich the judicial system survives – If request for recusal on theCground of legal pre-disposition in the form of judgment is accededto, that would destroy the very edifice of an independent judicialsystem – The entire judicial system is based on sound constitutionalprinciples – The roster making power is bestowed on the Chief Justiceof India so that litigants are not able to choose the Judges beforewhom they have to argue matter, and he is constitutionalDfunctionary who has been enjoined with this task at the highestpedestal to exercise the power of roster making – Once he hasexercised his power, it is not for the Judges to choose – As per theiroath, they have to discharge their duties without fear and favourand in dispassionate manner without any ill will, bias towardsElitigants, or cause – Abuse of court – Bench Hunting.(Arun Mishra, J.)Abuse of court: Bench hunting – Request for recusal of Judgeby litigants – Held: If requests for recusal are acceded to for theasking, litigants will be unscrupulously taking over the rosterFmaking powers of the Chief Justice and that would tantamount tointerference with the judicial system, by the mighty to have aparticular Bench by employing several means and putting all kindsof pressures from all angles all around – Moreover, recusal in suchunjustified circumstances, would become the norm – If recusal ismade, it would tantamount to giving room to unscrupulous litigantGto have Judge of their choice who can share the views which areto be canvassed by them – No such right can be given to any personunder the said guise – Justice Delivery System. (Arun Mishra, J.)

‘Judicial Recusal’ by Grant Hammond, former Judgeof the Court of Appeal of New Zealand – referred to.H

INDORE DEVELOPMENT AUTHORITY v. MANOHAR LAL & ORS.

Justice Delivery System: Recusal of Judge – Who to decide –Held: Recusal is not to be forced by any litigant to choose Bench– It is for the Judge whose participation is objected to, to deciderecusal application – Further, the embarrassment of hearing thelengthy arguments for recusal should not be compelling reason torecuse – Nothing should come in the way of dispensation of justiceor discharge of duty as Judge and judicial decision-making.(Arun Mishra, J.)

M/s. Ujagar Prints v. Union of India(1986) Suppl. SCC652 – relied on.

Pune Municipal Corporation & Anr. v. HarakchandMisirimal Solanki & Ors. (2014) 3 SCC 183 : [2014] 1SCR 783 ;Yogesh Neema & Ors. v. State of MadhyaPradesh (2016) 6 SCC 387; Sree Balaji NagarResidential Assn. v. State of Tamil Nadu (2015) 3 SCC353 : [2014] 7 SCR 799 ; Indore Development Authorityvs. Shailendra (Dead) through LRs. & Ors., 2018 SCCOnline SC 100 ; State of Bombay v. United Motors IndiaLtd., [1953] SCR 1069 ; Bengal Immunity Co. Ltd. v.State of Bihar, [1955] 2 SCR 603; M/s. Ujagar Printsand Ors. (II) v. Union of India & Ors.(1989) 3 SCC488 : [1988] 3 Suppl. SCR 770; Empire IndustriesLtd. v. Union of India(1985) 3 SCC 314 : [1985] 1Suppl. SCR 292;Gyan Devi Anand v. Jeevan Kumar& Ors.(1985) 2 SCC 683 : [1985] 1 Suppl. SCR 1 ;Ganpat Ladha v. Sashikant Vishnu Shinde(1978) 2SCC 573 : [1978] 3 SCR 198 ;Sajjan Singh v. State ofRajasthan 1965 AIR SC 845 : [1965] SCR 933;Damadilal v. Parashram (1976) 4 SCC 855 : [1976]Suppl. SCR 645 ;Kesavananda Bharati v. the State ofKerala(1973) 4 SCC 225 : [1973] Suppl. SCR 1;Hyderabad Industries Limited and Anr. v. Union of India& Ors. (1995) 5 SCC 338 : [1995] 2 Suppl. SCR 287;Khandelwal Metal & Engineering Works v. Union ofIndia(1985) 3 SCC 620 : [1985] 1 Suppl. SCR 750;Hyderabad Industries Ltd. & Anr. v. Union of India &Ors.(1999) 5 SCC 15 : [1999] 3 SCR 471 ;M/s. ClothTraders (P) Ltd. v. Additional C.I.T., Gujarat-I, (1979)

1088SUPREME COURT REPORTS

A3 SCC 538 : [1979] 3 SCR 984;Distributors (Baroda)Pvt. Ltd. v. Union of India & Ors.,(1986) 1 SCC 43:[1985] 1 Suppl. SCR 778 ;Petlad Turkey Red Dye WorksCo. Ltd. v. Commissioner of Income Tax,Bombay North, Ahmedabad [1963] Suppl.1SCR 871 ;Keshav Mills Co. Ltd. v. Commissioner ofBIncome Tax, Bombay North, Ahmedabad[1965] 2 SCR908 ;Jamal Uddin Ahmad v. Abu Saleh Najmuddin,(2003) 4 SCC 257 ;State of W.B. v. Shivananda Pathak,(1998) 5 SCC 513 : [1998] 1 SCR 811 ;Asok Pande v.Supreme Court of India, (2018) 5 SCC 341 : [2018] 3CSCR 337; Supreme Court Advocates-on-RecordAssociation & Anr. v. Union of India (recusal matter),(2016) 5 SCC 808 : [2015] SCR 975; Subrata RoySahara v. Union of India & Ors.(2014) 8 SCC 470 :[2014] 12 SCR 573 ; R.K. Anand v. Registrar, DelhiHigh Court(2009) 8 SCC 106: [2009] 11 SCR 1026;DKamini Jaiswal v. Union of India & Anr.(2018) 1 SCC156 ; Bal Kishan Giri v. State of Uttar Pradesh(2014)7 SCC 280 : [2014] 6 SCR 545 ; All India Institute ofMedical Sciences v. Prof. Kaushal K. Verma(2015) 220DLT 446 – referred to.

John Patrick LITEKY v. United States510 U.S. 540(1994) – referred to.

Shri M.C. Setalvad, in his Autobiography “My Life,Law and other things” – referred to.

FJustice Delivery System: Recusal of Judge – Practice andprocedure – Reference before five judge Bench comprising of JusticeArun Mishra and four other Hon’ble Judges – Application forRecusal of Justice Arun Mishra on ground that as Judge he hadexpressed an opinion in case in smaller Bench and that casehas now been referred to this larger five-Judge Bench – JusticeGArun Mishra rejected the application for recusal – Held: (per otherfour members of the Bench): The Judge who decided previouscause finally can and very often has participated in the later largerbench to which such previous decision is referred for reconsideration– There is no legal impediment or bar to participation of Justice

INDORE DEVELOPMENT AUTHORITY v. MANOHAR LAL & ORS.

Arun Mishra to hear reference on the merits in the present Bench –This Bench shall proceed to hear and decide the reference made toit, on its merits.

Supreme Court Advocates-on-Record Association & Anr.v. Union of India (2016)5 SCC 808:[2015] SCR 975– relied on.

Case Law Reference

In the Orderof Arun Mishra, J.

CIVIL APPELLATE JURISDICTION: Special Leave Petition(Civil) Nos.9036-9038 of 2016

From the Judgment and Order dated 30.11.2015 of the High Courtof Madhya Pradesh, Bench at Indore in Writ Appeal Nos.514, 799 and772 of 2006D

With

Civil Appeal Nos.4835 of 2015, 19532--19533, 19356, 19362, 19361,19358, 19357, 19360, 19359, 19363, 19364, 19412 of 2017, Special LeavePetition (C) Nos. 9798-9799 of 2016, 17088-17089, 37375, 37372, 16573-E-16605, 34752-34753 of 2016, 15890, 33022, 33127, 33114 of 2017, 30452of 2018, 16051 of 2019, Special Leave Petition (C) No....CC No. 15967of 2016, Diary No. 23842 of 2018, M.A. No.1423 of 2017 in Civil AppealNo.12247 of 2016, M.A. No.1787 of 2017 in Civil Appeal No.10210 of2016, M.A. No.1786 of 2017 in Civil Appeal No.10207 of 2016, M.A.No. 45 of 2018 in Civil Appeal No.6239 of 2017.

Tushar Mehta, SG, Ms. Pinky Anand, ASG, Ajay Bansal, AAG/Haryana, R. Balasubramanium, Shyam Divan, Gopal Sankaranarayanan,Mohan Parasaran, Dinesh Dwivedi, Anoop George Chaudhari, DhruvMehta, Anukul Chandra Pradhan, Shashikiran Shetty, K. S. Namdar,Rameshwar Singh Malik, Jayanth Muth Raj, V. Shekhar, Anup RoyGChoudhary, Sr. Advs., Kanu Agrawal, Manan Popli, Rajeev Ranjan, B.K. Satija, Ajay Bansal, Ms. Veena Bansal, Gaurav Yadava, Rajeev Ranjan,Ms. Veena Bansal, Sanjay Kumar Visen, Ms. Rachana Srivastava,Ms. Garima Prashad, Ms. Hemantika Wahi, Ms. Jesal Wahi, AshokArora, Shakti Singh, Abhishek Aanand Rai, Dr. Sushil Balwada, SanjayKapur, Ms. Megha Karnwal, Bharath Gangadharan, Harshal Narayan,

Ms. Harshita Raghuvanshi, V. M. Kannan, Ms. Shubhra Kapur, PramodDayal, Nikunj Dayal, Ms. Payal Dayal, Rakesh Kumar, Ashwani Kumar,Zoheb Hossain, Ms. Shashi Kiran, Dr. Satish Chandra, Ajay Prajapati,Manoj Jain, Shankar Chillarge, (for M/s. Lawyer’s Knit & Co.), MadhuPrakash, Rituraj Biswas, Rituraj Choudhary, Chandan Kumar, PrashantSingh, Ankur Talwar, Ms. Snidhi Mehra, Raj Bahadur Yadav, AshwaniKumar, Ms. Saudamini Sharma, Sumit Teterwal, Chakitan V. S. Papta,Ms. Peeha Verma, Jay Kumar, Ravinder Nain, Ms. Binu Tamta, PankajPandey, Manish Paliwal, Vikas Kumar, Ms. Sugandha Yadav, SudiptoSircar, Gaurav Agrawal, Shrutanjaya Bhardwaj, Vishal Sinha, ZohebHossain, Adeeba Mujahid, Vivek Gurnani, Ms. Aditi Dani, Baldev K.,Ravi Kumar, K. Mishra, Yasharth Kant, Nishant Singh, Deepak Goel,Harsh Parashar, Avishkar Singhvi, Siddharth Batra, Ravinder Kumar,Ms. Garima Sehgal, Ram Shankar, Ashish Chaubey, A. Vasanthakumar,Amit Arora, Om Prakash Kumar Srivastava, R. V. Kameshwaran,Mahesh Thakur, Sharan Dev Singh Thakur, Ms. Anuparna Bordoloi,Ms. Sheffali Chaudhary, Ms. Vipasha Singh, Shailesh Madiyal, VybhavRamesh, Sudhanshu Prakash, Karthik Anand Vijay Kumar, Ms. FarahFathima, Hitesh Kumar Sharma, S. K. Rajora, Ms. Sandhya Sharma,R. K. Sharma, Jitesh Malik, Satish Kumar, K. V. Vijayakumar, KamlendraMishra, Rajeev Kumar Dubey, Shashank Shekhar, Ms. Sheetal Rajput,Ms. Ritu Reniwal, Nipun Katyal, Rahul Kaushik, Pradeep Aggarwal,Lal Pratap Singh, Umesh Pratap Singh, Arjun Aggarwal, Ms. Ruchi Kohli,Kunal Verma, Mrs. Yugandhara Pawar Jha, Ms. Rashmi Nandakumar,Ms. Ayushma Awasthi, Shankar Narayanan, B. V. Balaram Das, ChandraBhushan Prasad, Pradhuman Gohil,. Ms.Taruna Singh Gohil, Ms. RanuPurohit, Shiva P., Ms. Jaikriti S. Jadeja, Siddhartha Chowdhury, GauravGoel, Sachin Gupta, Dinesh S. Badiar, Rameshwar Prasad Goyal, PuneetJain, Ms. Christi Jain, Harsh Jain, Harshit Khanduja, Shailendra Sharma,Pankaj Sharma, Ms. Pratibha Jain, Ritesh Khatri, Abhisth Kumar, AjayChoudhary, Ms. Rachana Srivastava, Sudarsh Menon, Simarandra B.,Ram Gupta, Keshav Ranjan, Senthil Jagadeesan, Ms. Sonakshi Malhan,Ms. Shruiti Chowdhary, Ms. Mrinal Kanwar, Ambhoj Kumar Sinha,Abhinav Ramkrishna, Thomas Joseph, Ms. Anannya Ghosh, R. AnandPadmanabhan, Shashi Bhushan Kumar, Vikas Mehta, Rajat Sehgal,Apoorv Khator, C. Paramasivam, M. Yogesh Kanna, Arun K. Sinha,Yashraj Singh Deora, Munawwar Naseem, C. L. Sahu, Varun Thakur,Brajesh Pandey, Varinder Kumar Sharma, Mrs. Balvinder Kaur Brar,Rajesh Mahale, Mukesh Verma, Pawan Kumar Shukla, Sanjeet Paliwal,

AYash Pal Dhingra, Pallav Mongia, Dawneesh Shaktivati, A. Goyal,Dr. M. S. Verma, Ms. Acpana Malik, Ms. Richa Verma, Ms. ShashiSingh, Rajnish Kumar Jha, M/s. Delhi Law Chambers, Divyakant Lahoti,Manish Kaushik, Parikshit Ahuja, Praveena Bisht, Kartik Lahoti, K.Parameshwar, M. V. Mukunda, P. V. Dinesh, Ms. Sindhu T. P., MukundP. Unny, Bineesh K., R. S. Lakshman, Ashwini Kumar Singh, AniruddhaBDeshmukh, Rajesh Srivastava, K. K. Trivedi, Mayank Trivedi, MahavirGodvi, Rabin Majumder, Sourav Roy, Harsh Anand, Gaurav Majumdar,Ms. Devika Khanna, Yash Ahlawat, Mrs. V. D. Khanna, Devendra Singh,Manish K. Bishnoi, Hiren Dasan, Abhimanue Shrestha, Abhishek Gupta,M/s. S. Narain & Co., Shree Pal Singh, Balaji Srinivasan, Advs. for theCappearing parties.

The Orders of the Court were passed by

ARUN MISHRA, J.

1. The question of interpretation of Section 24 of the Right to FairDCompensation and Transparency in Land Acquisition, Rehabilitation andResettlement Act, 2013 (for short, ‘the Act of 2013’), has been referredto five-Judge Constitution Bench of this Court.

2. three-Judge Bench of this Court in Pune MunicipalCorporation & Anr. v. Harakchand Misirimal Solanki & Ors. (2014)E3 SCC 183, had delivered judgment interpreting section 24 of the Actof 2013. In Yogesh Neema & Ors. v. State of Madhya Pradesh (2016)6 SCC 387, two-Judge Bench, doubted the decision of Sree BalajiNagar Residential Assn. v. State of Tamil Nadu (2015) 3 SCC 353and referred the matter to larger Bench.

F3. Yet in another Civil Appeal No.20982 of 2017 arising out ofS.L.P. (C) No.2131 of 2016 (Indore Development Authority vs.Shailendra (Dead) through Lrs. & Ors., 2018 SCC Online SC 100)the matter was referred to larger Bench on 7.12.2017. The followingobservations were made in Indore Development Authority (supra):

“19. It was also urged that this Court is also bound to prevent theGabuse of process of law. The cases which have been concludedare being revived. In spite of not accepting the compensationdeliberately and statement are made in the Court that they do notwant to receive the compensation at any cost, and they are agitating

the matter time and again after having lost the matters and whenproceedings are kept pending by interim orders by filing successivepetitions, the provisions of section 24 cannot be invoked by suchlandowners.

20. There is already reference made as to the applicability ofsection 24 in SLP (C) No.10472/2008 – Yogesh Neema & Ors v.State of M.P. & Ors. vide order dated 12.01.2016. There areseveral other issues arising which have been mentioned abovebut have not been considered in Pune Municipal Corpn. (supra).Thus, here is case where the matter should be considered by alarger Bench. Let the matter be placed before Hon’ble the ChiefJustice of India for appropriate orders.”

4. In Indore Development Authority v. Shailendra (Dead) thr.Lrs. & Ors. (supra), the bench consisting of one of us, namely, ArunMishra, J., Adarsh Kumar Goel, J. and Mohan M. Shantanagoudar, J.has decided the matter, and the view taken is that in Pune MunicipalCorporation (supra), the Court did not consider several aspects as tothe interpretation of section 24 of the Act of 2013. The decision mentionedabove was accepted unanimously by the three Judges. However, asPune Municipal Corporation (supra) was judgment by bench ofcoordinate strength, two of us, namely, myself and Adarsh Kumar Goel,J. opined that decision is per incuriam. However, Mohan M.Shantanagoudar, J. opined that it would be appropriate to refer the matterto larger Bench. In the majority opinion in Indore DevelopmentAuthority (supra), the questions formulated have been answered thus:

“228. Our answers to the questions are as follows:

Q. No. I:- The word ‘paid’ in section 24 of the Act of 2013 hasthe same meaning as ‘tender of payment’ in section 31(1) of theAct of 1894. They carry the same meaning, and the expression‘deposited’ in section 31(2) is not included in the expressions ‘paid’in section 24 of the Act of 2013 or in ‘tender of payment’ used insection 31(1) of the Act of 1894. The words ‘paid’/tender’ and‘deposited’ are different expressions and carry different meaningswithin their fold.

In section 24(2) of the Act of 2013 in the expression ‘paid,’ it isnot necessary that the amount should be deposited in Court asprovided in section 31(2) of the Act of 1894. Non-deposit of

compensation in Court under section 31(2) of the Act of 1894does not result in lapse of acquisition under section 24(2) of theAct of 2013. Due to the failure of deposit in Court, the onlyconsequence at the most in appropriate cases may be of higherrate of interest on compensation as envisaged under section 34 ofthe Act of 1894 and not lapse of acquisition.

Once the amount of compensation has been unconditionallytendered, and it is refused, that would amount to payment, and theobligation under section 31(1) stands discharged, and that amountsto the discharge of obligation of payment under section 24(2) ofthe Act of 2013 also. It is not open to the person who has refusedto accept compensation, to urge that since it has not been depositedin Court, the acquisition has lapsed. Claimants/landowners, afterrefusal, cannot take advantage of their own wrong and seekprotection under the provisions of section 24(2).

Q. No. II:- The normal mode of taking physical possession underthe land acquisition cases is drawing of Panchnama as held inBanda Development Authority (supra).

Q. No. III:- The provisions of section 24 of the Act of 2013, donot revive barred or stale claims such claims cannot be entertained.

Q. No. IV:- Provisions of section 24(2) do not intend to cover theperiod spent during litigation and when the authorities have beendisabled to act under section 24(2) due to the final or interim orderof court or otherwise, such period has to be excluded from theperiod of five years as provided in section 24(2) of the Act of2013. There is no conscious omission in section 24(2) for theexclusion of period of the interim order. There was no necessityto insert such provision. The omission does not make anysubstantial difference as to legal position.

Q. No. V:- The principle of actus curiae neminem gravabit isapplicable, including the other common law principles fordetermining the questions under section 24 of the Act of 2013.The period covered by the final/ interim order by which theauthorities 196 have been deprived of taking possession has to beexcluded. Section 24(2) has no application where Court hasquashed acquisition.”

Question Nos.2, 3, 4, and 5, which have been decided, did notarise in Pune Municipal Corporation (supra).Question No.2 wasa general question with respect to the mode of taking possessionunder the land acquisition cases. Remaining question arose outof Yogesh Neema (supra).

5. three-Judge Bench of this Court on 21.2.2018 requested theother benches to defer the hearing until decision, one way or the other,on the issue whether the matter should be referred to the larger Benchor not.

6. Division Bench presided by Adarsh Kumar Goel, J. on22.2.2018 in Indore Development Authority v. Shyam Verma and Ors.,(S.L.P. (C) No.9798 of 2016) considered it appropriate to refer the matterto Hon’ble the Chief Justice of India to refer the issues to be resolved bya larger Bench at the earliest.

7. On 22.2.2018, Bench consisting of myself and Amitava Roy,J. have in State of Haryana v. Maharana Pratap Charitable Trust(Regd.) & Anr. (Civil Appeal No. 4835 of 2015) referred the matter tothe Hon’ble the Chief Justice of India to constitute an appropriate benchfor consideration of the larger issue. Thus, it is apparent that two-divisionBenches, i.e., one consisting of myself and another consisting of AdarshKumar Goel, J. referred the matter to Hon’ble the Chief Justice of India.Hon’ble, the Chief Justice of India, considered it appropriate to constitutea Constitution Bench to deal with all the issues in an apposite manner.8. The case was listed before five-Judge Constitution Bench on6.3.2018. The Constitution Bench observed that it would consider allthe aspects including the correctness of the decision of Pune MunicipalCorporation (supra) and the other judgments following the said decisionas well as the judgments rendered in Indore Development Authority(supra). Thus, all the questions are kept open to be decided. No particularquestion has been referred to the larger bench. After that, Hon’ble, theChief Justice of India has constituted this Bench to decide the reference.

9. Mr. Shyam Divan, Mr. Dinesh Dwivedi and Mr. GopalSankarnarayanan, learned Senior Advocates on behalf of the respondents,have raised preliminary objection for recusal of one of us, namely;Arun Mishra, J. on the ground that Constitution Bench consists of one of

Athe Judges who were on smaller panel and the correctness of theopinion cannot be, thus, judged by the Constitution Bench independently,as final view has been expressed in Indore Development Authority(supra) wherein the decision in Pune Municipal Corporation (supra)has been held to be per incuriam. Thus, the Judge who has decided thematter in Indore Development Authority (supra) is pre-disposed to decideBthe matter only in particular way. It was also submitted that there isreasonable apprehension that the Judge may have some bias in dealingwith the matter by larger Bench. As such, one of us, namely; ArunMishra, J. should recuse. It was further submitted that Judge couldnot sit in appeal to adjudge his judgment. The jurisdictions are primarilyCcorrective jurisdictions under the hierarchal system, and professional aswell as institutional integrity demands that the same person should notbe Judge at both levels. The Judge who has decided the matter maybe pre-disposed to support the previous reasoning and, in that case, itwould seem that he is or she is Judge in his or her own cause. Thelearned Counsel for the respondents are of the view that the IndoreDDevelopment Authority (supra) is wrongly decided. The Court orTribunal should be above unfairness or bias. The Judge has to stepdown, in case he cannot impart justice impartially. The judge or judgesconcerned should excuse themselves and abstain from sitting in the case.A Judge cannot hear an appeal against his/ her own decisions.

E10. Per contra, Shri Tushar Mehta, Learned Solicitor General,Shri Mohan Parasaran, Shri Anoop Chaudhary and Shri Vivek Tankha,learned Senior Advocates submitted that there is no question of recusaland as matter of substance it is the practice of this Court that theJudges who have decided the matter earlier or have referred it are madeFpart of the Bench. They have cited several decisions to the effect thatJudges who have delivered Judgment in three-Judges Bench formedpart of five-Judges Bench or the larger Benches which decided thematter. The plea of bias or pre-disposition is not attracted in the matterof judicial decisions. The plea of bias or pre-disposition is based onextra-judicial factors. What the Court is required to answer is only aGpure question of law, and there are occasions when Hon’ble, the ChiefJustice of India, has considered it appropriate to constitute an appropriatebench having decided case. Recusal of any Judge cannot be sought onthe ground that the decision rendered by him in smaller bench has tobe considered by the larger bench.

11. Learned Solicitor General submitted that tendency is growingin that as soon as important matters are listed, particular articles arewritten in the newspapers concerning the Constitution of the bench or toinfluence the decision on merits of case. Newspaper articles are writtento influence Court. The very independence of the judicial system is atstake, if in this kind of scenario, recusal is sought by powerful lobbies,and any recusal would be defeating the very oath of the office which aJudge takes.12. Shri Mohan Parasaran, learned Senior Counsel has also pointedout that the practice of this Court makes the law, and the Judges whohave decided the matters in smaller Bench have ordinarily formedquorum of the larger Benches. The question is of deciding the legalprinciple. In the Review jurisdiction and Curative Petitions; the sameJudge hears the matter. There is nothing wrong in case the Judges whohave heard the matter in smaller Benches form part of the larger bench.There is no question of any pre-disposition in such matters or bias, andas such, the decision rendered in smaller formation cannot be groundfor seeking recusal.

13. The first question before us is whether Judge who hasexpressed an opinion in smaller Bench and the case has been referredto larger Bench, because of the conflict of the opinion or otherwise,can hear the matter in larger bench. For finding an answer to thesame, we have to look into the practice of this Court.

14. Shri M.C. Setalvad, in his autobiography “My Life, Law andother things” has referred in Chapter 12 the events between 1955 to1969. He has referred to one of the important decisions of this Courtdelivered by S.R. Das, J., who was the then Acting Chief Justice. Itwas the Bengal Immunity case. In 1953, bench presided over byChief Justice Sastri of which Justice Bhagwati was member held thatState could impose sales tax on goods delivered for consumption in thatState, even though the sale was an inter-State sale as held in State ofBombay v. United Motors India Ltd., 1953 SCR 1069 with JusticeBose and Justice S.R. Das, Justice Bose delivered dissenting judgmentand S.R. Das, J. as Junior Judge had also expressed contrary opinionin another decision.

15 The same question arose in Bengal Immunity Co. Ltd. v. Stateof Bihar, 1955 (2) S.C.R. 603, which came up when S.R. Das, J. was

Aacting as the Chief Justice. S.R. Das, J. who held strong views on thematter, had the matter placed before larger Bench of seven Judges,including the two, Justice Bose and Justice Bhagwati, who had participatedin the earlier decision. Justice Bhagwati, who had formed part of themajority in the United Motors case (supra), agreeing with the view ofChief Justice Sastri, had reversed his former view, giving his reasons inBdetail and held that earlier decision was erroneous. Following are theextracts from “My Life, Law and other things” by M.C. Setalvad :

“One of the important decisions of the Supreme Courtdelivered while S.R. Das was the Chief Justice, was the BengalImmunity Case. That case had an interesting history. Article 286Cof the Constitution (as it then stood) prohibited State Legislaturefrom imposing sales tax on transactions of inter-State sales andsales in the course of export. The Article was not, however,happily worded. In 1953, Bench of the Supreme Court presidedover by Chief Justice Sastri, of which Justice Bhagwati was aDmember, held that State could impose sales tax on goods deliveredfor consumption in that State, even though the sale was an inter-State sale[1]. This decision was contrary to the express provision ofthe Constitution that Parliament alone could authorise the impositionof tax on sales in the course of inter-State sales and was basedon an explanation to Article 286(1)(a), which was not applicable.EJustice Bose had delivered dissenting judgment, and S.R. Dasas puisne judge had also expressed contrary opinion in anotherdecision.The same question arose in Bengal Immunity Co. Ltd. v.2State of Biharwhich came up when S.R. Das was acting as theFChief Justice. The Bengal Immunity Co. manufactured medicinalproducts in Bengal and sold them all over India including Bihar.The Company had no office or agent in Bihar but the Bihar salestax authorities sought to compel the Company to register as adealer in Bihar and pay sales tax on the ground that goods deliveredGin Bihar for consumption in Bihar as direct result of the salewere liable to sales tax in Bihar even though the sale had takenplace in Bengal. The view of the State of Bihar was in accordancewith the decision of the Supreme Court in the United Motors

1State of Bombay v. United Motors (India) Ltd., (1953) S.C.R. 1069.

2(1955) 2 S.C.R. 603.

Case but Das, who held strong views in the matter, had the matterplaced before larger Bench of seven judges including two, JusticeBose and Justice Bhagwati, who had participated in the earlierdecision.

The matter was of vital importance to the States, becauseunder the view expressed by Chief Justice Sastri in the UnitedMotors Case, one State – the State in which goods had beendelivered for consumption as direct result of the sale – would beentitled to levy sales tax on such transactions, while, under theother view, no State at all would be able to tax the goods, as thetransaction of sale would be an inter-State sale. The Centre alonecould make law for levying sales tax on inter-State sales.There is little doubt that the somewhat strained construction putupon the Explanation to Article 286(1)(a) by Chief Justice Sastriand the majority was due to the consideration that the sources ofrevenue of the States under the Constitution which were alreadyslender should not be diminished by denying to the States theopportunity of levying sales tax altogether in such cases.

Notices were issued to all the States and many of themintervened by their Advocates-General. N.C. Chatterjee appearedfor the Bengal Immunity Company, and Lal Narayanan Sinha,then the Government Advocate of Bihar, appeared for the Stateof Bihar. I intervened on behalf of the State of West Bengal.Sikri, as the Advocate-General, represented the State of EastPunjab.

At the outset arose the question whether the Supreme Courtcould overrule its previous decision if it was satisfied that it waserroneous. That was the first occasion on which the Court wascalled upon to deal with this important question.

The Court naturally considered the practice followed in otherfinal Courts of appeal. The Privy Council had held that though itwas not absolutely bound to follow its earlier decisions it wouldseldom differ from them in constitutional matters as they wouldhave been acted upon both by Governments and subjects. TheUnited States Supreme Court had on number of occasionsexpressly overruled its previous decisions. The majority of the

3.In England the position has since changed; the House of Lords is no longer bound byits own decisions.

Supreme Court including Das preferred to follow the Americanpractice. Das pointed out the difference between the position inEngland where the House of Lords had held that it was bound byits earlier decisions[3] and India and observed:

But, in country governed by federal constitution, such asthe United States of America and the Union of India are, it is byno means easy to amend the Constitution, if an erroneousinterpretation is put upon it by this Court. An erroneousinterpretation to the Constitution may quite conceivably beperpetuated or may at any rate remain unrectified for considerabletime to the great detriment to public well-being. The considerationsadverted to in the decisions of the Supreme Court of Americaquoted above are, therefore, apposite and apply in full force indetermining whether previous decision of this Court should orshould not be disregarded or overruled There is nothing in ourConstitution which prevents us from departing from previousdecision if we are convinced of its error and its baneful effect onthe general interests of the public.

He then proceeded to point out number of circumstanceswhich made it necessary to set right what he considered to be theharmful effects of the earlier decision which he believed to beerroneous. He ultimately formulated the governing principle inthese words:

Reference is made to the doctrine of finality of judicialdecisions and it is pressed upon us that we should not reverse ourprevious decision except in cases where material provision oflaw has been overlooked or where the decision has proceededupon the mistaken assumption of the continuance of repealed orexpired statute and that we should not differ from previousdecision merely because contrary view appears to us to bepreferable. It is needless for us to say that we should not lightlydissent from previous pronouncement of this Court. Our powerof review, which undoubtedly exists, must be exercised with duecare and caution and only for advancing the public well-being inthe light of the surrounding circumstances of each case broughtto our notice; but we do not consider it right to confine our powerwithin rigidly fixed limits, as suggested before us.

The minority, consisting of three Judges, did not, however,accept this position.

On the merits, the majority of the Court consisting of fourjudges, including the acting Chief Justice, came to the conclusionthat the provisions of several parts of Article 286 made it clearthat it had to deal with different topics and one part could not beprojected or read into another. The conclusion reached was thatthe Explanation to clause (1) (a) could not be ultimately extendedto clause (2) either as an exception or as proviso and read aslimiting the ambit of clause (2). Until Parliament provided otherwiseby law in exercise of its powers under clause (2) of the Article, noState could impose any tax on sales or purchases taking place inthe course of inter-State trade or commerce. The decision ofChief Justice Sastri to the extent that it decided to the contrarycould not be accepted as well-founded on principle or authority.

The dissenting view was expressed in powerful opinions byeach of the three dissenting Judges. They took the view that thescheme of the Article was that it fixed the situs of the sales witha view to avoid multiple taxation. For that purpose, it dividedsales into two categories, “inside sales” and “outside sales”, andenacted that State cannot tax an outside sale. When, in thesame context, the Explanation declared that sale must be deemedto have taken place in the State in which the goods are deliveredfor consumption, its purpose clearly was to take such sales out ofinter-State trade and stamp them with the character of inter-Statesales.The most powerful dissent was that delivered by JusticeAiyar, whose judgment was the most exhaustive and the longestof the judgments delivered by the various Judges. One of thenotable judgments in the case was that of Justice Bhagwati whohad formed part of the majority in the United Motors case,agreeing with the view of Chief Justice Sastri. He reversed hisformer view with skill, giving his reasons in detail. He had thecourage to state that his opinion in the earlier decision “was clearlyerroneous and public interest demand the same should bereversed.”

(emphasis supplied)

A16. In M/s. Ujagar Prints and Ors. (II) v. Union of India &Ors. (1989) 3 SCC 488, Constitution Bench of this Court was constitutedconsisting of R.S. Pathak, C.J., Sabyasachi Mukherji, S. Natarajan, M.N.Venkatachaliah and S. Ranganathan, JJ. The question which arose forconsideration was the correctness of the decision in Empire IndustriesLtd. v. Union of India (1985) 3 SCC 314, which was decided by aBBench consisting of three-Judges, namely S. Murtaza Fazal Ali, S.Varadarajan, and Sabyasachi Mukherji, JJ. Sabyasachi Mukherji, J.delivered the judgment on his behalf and S. Murtaza Fazal Ali, J.Varadarajan partly concurred. The matter was referred to examine thecorrectness of the view of Justice Sabyasachi Mukherji expressed forCthe Court in Empire Industries Ltd. v. Union of India (supra). Theview taken in the previous decision by Sabyasachi Mukherji, J., washeld to be good law. It was case where the correctness of the viewtaken in Empire Industries case (supra) on certain aspects was doubtedby another Bench of this Court in M/s. Ujagar Prints v. Union ofIndia (1986) Supp. SCC 652. Accordingly, the matter was referred to aDfive-judge Bench. Sabyasachi Mukherji, J. was one of the members ofthe Bench which affirmed his decision in the Empire Industries case(supra).

17. There is yet another instance of Constitution Bench whichcomprised of Y.V. Chandrachud, C.J., P.N. Bhagwati, S. Murtaza FazalEAli, Amarendra Nath Sen, P. Balakrishna Eradi, JJ. in the matter ofGyan Devi Anand v. Jeevan Kumar & Ors. (1985) 2 SCC 683, wherethe question which arose was whether statutory tenancy is heritable. InGyan Devi Anand (supra), the correctness of the decision in GanpatLadha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573 came up forFconsideration. The decision in Ganpat Ladha’s case had been overruled,and Damadilal v. Parashram, (1976) 4 SCC 855 was affirmed. TheCourt has observed thus:

“35. In our opinion, the view expressed by this Court in GanapatLadha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573 and theGobservations made therein which we have earlier quoted, do notlay down the correct law. The said decision does not properlyconstrue the definition of the ‘tenant’ as given in Section 5(11)(b)of the Act and does not consider the status of the tenant, as definedin the Act, even after termination of the commercial tenancy. Inour judgment in Damadilal v. Parashram, (1976) 4 SCC 855,

this Court has correctly appreciated the status and the legal positionof tenant who continues to remain in possession after terminationof the contractual tenancy. We have quoted at length the view ofthis Court and the reasons in support thereof. The view expressedby seven Judge Bench of this Court in Dhanapal Chettiar v.Yesodai Ammal, (1979) 4 SCC 214 and the observations madetherein which we have earlier quoted, lend support to the decisionof this Court in Damadilal case. These decisions correctly laydown that the termination of the contractual tenancy by the landlorddoes not bring about change in the status of the tenant whocontinues to remain in possession after the termination of thetenancy by virtue of the provisions of the Rent Act. properinterpretation of the definition of tenant in the light of the provisionsmade in the Rent Acts makes it clear that the tenant continues toenjoy an estate or interest in the tenanted premises despite thetermination of the contractual tenancy.”18. Justice P.N. Bhagwati concurred with the view and overruledhis own decision in Ganpat Ladha’scase (supra). Justice Bhagwatihas observed thus:

“3. On November 6, 1960 the appellant-landlord filed suit foreviction which is now before us. On August 30, 1962, the firstdate of hearing, the issues were framed. On June 18, 1963, thetrial court decreed the suit on the following findings: the notice toquit was valid and duly served; the arrears of rent were properlydemanded under Section 12(2) of the Act; the demand was notcomplied with in accordance with law by the tenant within monthof the demand; the case was governed by the provisions of Section12(3)(b) and not by the provisions of Section 12(3)(a) because adispute about the fixation of standard rent was still pending whenthe notice demanding standard rent was given; nevertheless, thetenant was not entitled to the protection of Section 12(3)(b), sincehe had not paid the rent regularly in accordance with the conditionsunder which the protection of Section 12(3)(b) could be given tohim.”

19. Also, in the landmark decision of Kesavananda Bharati v.the State of Kerala (1973) 4 SCC 225, the earlier view held by thisCourt in Sajjan Singh v. State of Rajasthan 1965 AIR SC 845 was

Aoverruled though some of the Hon’ble Judges in the two cases werecommon.

20. In Hyderabad Industries Limited and Anr. v. Union of India& Ors. (1995) 5 SCC 338, three-Judge Bench of this Court consistingof A.M. Ahmadi, C.J., S.P. Bharucha, and K.S. Paripoornan, JJ. doubtedBthe correctness of the view taken in Khandelwal Metal & EngineeringWorks v. Union of India (1985) 3 SCC 620 and referred the matter toa larger Bench. The larger bench consisted of S.P. Bharucha, B.N.Kirpal, S. Rajendra Babu, Syed Mohammed Quadri, and M.B. Shah, JJ.They answered the reference reported in Hyderabad Industries Ltd.& Anr. v. Union of India & Ors. (1999) 5 SCC 15. It is significant toCnote that S.P. Bharucha, J., who had doubted the correctness of thedecision and referred the matter to Constitution Bench, has overruledthe earlier view on certain grounds.

21. In M/s. Cloth Traders (P) Ltd. v. Additional C.I.T., Gujarat-I, (1979) 3 SCC 538, three-Judge Bench consisting of P.N. Bhagwati,DD.A. Desai, and A.D. Koshal, JJ. decided the question of inter-corporatedividends. The correctness of this decision was taken up for considerationbefore Constitution Bench of Y.V. Chandrachud, C.J., P.N. Bhagwati,Amarendra Nath Sen, D.P. Madon, M.P. Thakkar, JJ. in Distributors(Baroda) Pvt. Ltd. v. Union of India & Ors., (1986) 1 SCC 43, inEwhich the decision in M/s. Cloth Traders (P) Ltd. v. Addl. CIT, Gujarat(supra), was overruled. P.N. Bhagwati, J. delivered the judgment forthe Constitution Bench. He was also the author of the earlier judgmentin M/s. Cloth Traders (P) Ltd. v. Addl. CIT, Gujarat (supra), whichhad been overruled. This Court has observed thus:

F“19. But, even if in our view the decision in M/s. Cloth Traders(P) Ltd. v. Additional C.I.T., Gujarat-I, (1979) 3 SCC 538 iserroneous, the question still remains whether we should overturnit. Ordinarily we would be reluctant to overturn decision givenby Bench of this Court, because it is essential that there shouldbe continuity and consistency in judicial decisions and law shouldGbe certain and definite. It is almost as important that the law shouldbe settled permanently as that it should be settled correctly. Butthere may be circumstances where public interest demands thatthe previous decision be reviewed and reconsidered. The doctrineof stare decisis should not deter the Court from overruling an

earlier decision, if it is satisfied that such decision is manifestlywrong or proceeds upon mistaken assumption in regard to theexistence or continuance of statutory provision or is contrary toanother decision of the Court. It was Jackson, J. who said in hisdissenting opinion in Massachusetts v. United States 333 US 611:“I see no reason why I should be consciously wrong today becauseI was unconsciously wrong yesterday.” Lord Denning also saidto the same effect when he observed in Ostime v. AustralianMutual Provident Society (1960) AC 549: “The doctrine ofprecedent does not compel Your Lordships to follow the wrongpath until you fall over the edge of the cliff.” Here we find thatthere are overriding considerations which compel us to reconsiderand review the decision in Cloth Traders case (supra). In thefirst place, the decision in Cloth Traders case (supra) was renderedby this Court on May 4, 1979 and immediately thereafter, within afew months, Parliament introduced Section 80-AA withretrospective effect from April 1, 1968 with view to overridingthe interpretation placed on Section 80-M in Cloth Traders case(supra). The decision in Cloth Traders case (supra) did nottherefore hold the field for period of more than few months,and it could not be said that any assessee was misled into actingto its detriment on the basis of that decision. There was no decisionof this Court in regard to the interpretation of sub-section (1) ofSection 80-M prior to the decision in Cloth Traders case (supra),and there was therefore no authoritative pronouncement of thisCourt on this question of interpretation on which an assessee couldclaim to rely for making its fiscal arrangements. The only decisionin regard to the interpretation of sub-section (1) of Section 80-Mgiven by any High Court prior to the decision in Cloth Traderscase (supra), was that of the Gujarat High Court in Addl. CIT v.Cloth Traders Pvt. Ltd. (1974) 97 ITR 140 (Guj.) and that decisiontook precisely the same view which we are inclined to accept inthe present case. It is therefore difficult to see how any assesseecan legitimately complain that any hardship or inconvenience wouldbe caused to it if the decision in Cloth Traders case wasoverturned by us. If despite the decision of the Gujarat High Courtin Addl. CIT v. Cloth Traders Pvt. Ltd. the assessee proceededon the assumption, now found to be erroneous, that the Gujarat

AHigh Court decision was wrong and the deduction permissibleunder sub-section (1) of Section 80-M was liable to be calculatedwith reference to the full amount of dividend received by theassessee, the assessee can have only itself to blame. Knowingfully well that the Gujarat High Court had decided the question ofinterpretation of sub-section (1) of Section 80-M in favour of theBRevenue and there was no decision of this Court taking differentview, no prudent assessee could have proceeded to make itsfinancial arrangements on the basis that the decision of the GujaratHigh Court was erroneous. Moreover, we find, for reasons wehave already discussed, that the decision in Cloth Traders caseCis manifestly wrong because it has failed to take into account avery vital factor, namely, that the deduction required to be madeunder sub-section (1) of Section 80-M is not from the gross totalincome but from “such income by way of dividends”. There isalso another circumstance which makes it necessary for us toreconsider and review the decision in Cloth Traders case, andDthat is the decision in Cambay Electric Supply Co. case (1978)2 SCC 644. The decision in Cloth Traders case is inconsistentwith that in Cambay Electric SupplyCo.case. Both cannot standtogether. If one is correct, the other must logically be wrong andvice versa. It is therefore necessary to resolve the conflict betweenEthese two decisions and harmonise the law and that necessitatesan inquiry into the correctness of the decision in Cloth Traderscase. It is for this reason that we have reconsidered and reviewedthe decision in Cloth Traders case, and on such reconsiderationand review, we have come to the conclusion that the decision inCloth Traders case is erroneous and must be overturned.”

This Court has observed that law should be settled permanentlyand that it should be settled correctly. There may be circumstanceswhere public interest demands that the previous decision be reviewedand reconsidered. Thus, it is apparent that this is the consistent practiceof this Court that Judges who had rendered the earlier decision haveGpresided over or been part of the larger Bench.

22. Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner ofIncome Tax, Bombay North, Ahmedabad (1963) Supp. 1 SCR 871came up for consideration in Keshav Mills Co. Ltd. v. Commissioner

of Income Tax, Bombay North, Ahmedabad (1965) 2 SCR 908. TheConstitution Bench comprised of seven-Judges in Keshav Mills Co.Ltd., M. Hidayatullah, J. was part of the Bench in both the matters.There are other instances which have been cited indicating the practiceof this Court.

23. Shri Mohan Parasaran learned Senior Counsel has submittedthat practice of the Court is the law of the Court and binding and shouldnormally be adhered to in the absence of rules to the contrary. He referredto the decision of Jamal Uddin Ahmad v. Abu Saleh Najmuddin, (2003)4 SCC 257, which held thus:

“18. Sub-section (1) of the abovesaid provision required theelection petition being presented to the Election Commission. Sub-section (2) provided for the election petition being delivered to theSecretary to the Commission or to such other officer as may beappointed by the Election Commission or even being sent byregistered post and delivered to the Secretary to the Commissionor the officer appointed so as to be deemed to have been presentedto the Election Commissioner. While “High Court” has beensubstituted in place of Election Commission in sub-section (1),sub-section (2) of the erstwhile Section 81 has been deleted withoutre-enacting corresponding provision. The reason is more thanobvious. Parliament knew that so far as the Election Commissionis concerned, it was considered necessary to trust only theSecretary to the Commission or such other officer as may beappointed by the Election Commission entrusted with theresponsibility of receiving the election petition presented to theElection Commission. So far as the High Court is concerned, sucha provision was not required to be enacted into the Act. Jurisdictionto try an election petition has been conferred on the High Court inplace of the Election Tribunal. The High Court is constitutionalcourt which was pre-existing. It is court of record and exercisesplenary powers. The High Court being pre-existing judicialinstitution also had rules, directions and practice already existingand prevalent and governing the reception of documents presentedto it; the same would apply to election petitions. Cursus curiaeest lex curiae— The practice of the Court is the law of the

ACourt. Every Court is the guardian of its own records and themaster of its own practice; and where practice has existed, it isconvenient, except in cases of extreme urgency and necessity, toadhere to it, because it is the practice, even though no reason canbe assigned for it; for an inveterate practice in law generally standsupon principles that are founded in justice and convenience. (SeeBBroom’s Legal Maxims, 10th Edn., p. 82.) Even in the absence ofChapter VIII-A in the Gauhati High Court Rules there would havebeen nothing wrong in the High Court or the Chief Justiceauthorizing any of its officers to receive the election petitionpresented to it so as to enable exercise of the jurisdiction conferredCon the High Court by Chapter II of the Act. The Gauhati HighCourt thought it proper to incorporate Chapter VIII-A in its Rulesin view of the amendment made in Chapter II of the Act.”

(emphasis supplied)

24. Shri Mohan Parasaran, learned Senior Counsel has also reliedDupon the decision of the Supreme Court of United States in John PatrickLITEKY v. United States, 510 U.S. 540 (1994), where the question ofrecusal based on “extrajudicial source” doctrine came up forconsideration. The Supreme Court of United States held:

“[5] [6] [7] The judge who presides at trial may, upon completionEof the evidence, be exceedingly ill disposed towards the defendant,who has been shown to be thoroughly reprehensible person.But the judge is not thereby recusable for bias or prejudice, sincehis knowledge and the opinion it produced were properly andnecessarily acquired in the course of the proceedings, and areFindeed sometimes (as in bench trial) necessary to completion ofthe judge’s task. As Judge Jerome Frank pithily put it: “Impartialityis not gullibility. Disinterestedness does not mean child-likeinnocence. If the Judge did not form judgments of the actors inthose courthouse dramas called trials, he could never renderdecisions.” In re J.P. Linahan, Inc., 138 F.2d 650, 654 (CA2G1943). Also not subject to deprecatory characterization as “bias”or “prejudice” are opinions held by judges as result of what theylearned in earlier proceedings. It has long been regarded as normaland proper for judge to sit in the same case upon its remand,and to sit in successive trials involving the same defendant.

[8] [9] It is wrong in theory, though it may not be too far off themark as practical matter, to suggest, as many opinions have,that “extrajudicial source” is the only basis for establishingdisqualifying bias or prejudice. It is the only common basis, butnot the exclusive one, since it is not the exclusive reason apredisposition can be wrongful or inappropriate. favourable orunfavourable predisposition can also deserve to be characterizedas “bias” or “prejudice” because, even though it springs from thefacts adduced or the events occurring at trial, it is so extreme asto display clear inability to render fair judgment. (That explainswhat some courts have called the “pervasive bias” exception tothe “extrajudicial source” doctrine. See, e.g., Davis v. Board ofSchool Comm’rs of Mobile County, 517 F.2d 1044, 1051 (CA51975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188(1976).

[13] [14] For all these reasons, we think that the “extrajudicialsource” doctrine, as we have described it, applies to § 455(a). Aswe have described it, however, there is not much doctrine to thedoctrine. The fact that an opinion held by judge derives from asource outside judicial proceedings is not necessary conditionfor “bias or prejudice” recusal, since predisposition developed duringthe course of trial will sometimes (albeit rarely) suffice. Nor isit sufficient condition for “bias or prejudice” recusal, since someopinions acquired outside the context of judicial proceedings (forexample, the judge’s view of the law acquired in scholarly reading)will not suffice. Since neither the presence of an extrajudicialsource necessarily establishes bias, nor the absence of anextrajudicial source necessarily precludes bias, it would be betterto speak of the existence of significant (and often determinative)“extrajudicial source” factor, than of an “extrajudicial source”doctrine, in recusal jurisprudence.

[15] [16] [17] [18] The facts of the present case do not requireus to describe the consequences of that factor in complete detail.It is enough for present purposes to say the following: First, judicialrulings along almost never constitute valid basis for bias orpartiality motion. See United States v. Grinnell Corp., 384 U.S.,at 583, 86 S.Ct., at 1710. In and of themselves (i.e., apart from

surrounding comments or accompanying opinion), they cannotpossibly show reliance upon an extrajudicial source; and can onlyin the rarest circumstances evidence the degree of favouritism orantagonism required (as discussed below) when no extrajudicialsource is involved. Almost invariably, they are proper grounds forappeal, not for recusal. Second, opinions formed by the judge onthe basis of facts introduced or events occurring in the course ofthe current proceedings or of prior proceedings, do not constitutea basis for bias or partiality motion unless the display deep-seated favouritism or antagonism that would make fair judgmentimpossible. Thus, judicial remarks during the course of trial thatare critical or disapproving of, or even hostile to, counsel the parties,or their cases, ordinarily do not support bias or partiality challenge.They may do so if they reveal an opinion that derives from anextrajudicial source; and they will do so if they reveal such highdegree of favouritism or antagonism as to make fair judgmentimpossible. An example of the latter (and perhaps of the formeras well) is the statement that was alleged to have been made bythe District Judge in Berger v. United States, 255 U.S. 22, 41S.Ct.230, 65 L.Ed.481 (1921), World War I espionage caseagainst German-American defendants; “One must have veryjudicial mind, indeed, not [to be] prejudiced against the GermanAmericans” because their “hearts are reeking with disloyality.”Id., at 28 (internal quotation marks omitted). Not establishingbias or partiality, however, are expressions of impatience,dissatisfaction, annoyance, and even anger, that are within thebounds of what imperfect men and women, even after havingbeen confirmed as federal judges, sometimes display. judge’sordinary efforts at courtroom administration – even stern andshort-tempered judge’s ordinary efforts at courtroomadministration – remain immune.

The term “extrajudicial source,” though not the interpretive doctrinebearing its name, has appeared in only one of our previous cases.United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct.1698, 16L.Ed.2d 778 (1966). Respondents in Grinnell alleged that thetrial judge had personal bias against them, and sought hisdisqualification and new trial under 28 U.S.C. § 144. Thatstatute, like § 455(b)(1), requires disqualification for “bias or

prejudice”. In denying respondents’ claim, the Court stated that“[t]he alleged bias and prejudice to be disqualifying must stemfrom an extrajudicial source and result in an opinion on the meritson some basis other than what the judge learned from hisparticipation in the case.” 384 U.S., at 583, 86 S.Ct., at 1710.”

In LITEKY (supra), it has been held that it is desirable to have thesame Judge in the successive causes. They have to be faithful to oath.Following observation has been made:

“To take common example, litigants (like petitioners here) oftenseek disqualification based upon judge’s prior participation, in ajudicial capacity, in some related litigation. Those allegations aremeritless in most instances, and their prompt rejection is importantso the case can proceed. Judges, if faithful to their oath, approachevery aspect of each case with neutral and objective disposition.They understand their duty to render decisions upon proper recordand to disregard earlier judicial contacts with case or party.Some may argue that judge will feel the “motivation to vindicatea prior conclusion” when confronted with question for the secondor third time, for instance, upon trial after remand. Ratner,Disqualification of Judges for Prior Judicial Actions, 3 How.L.J.228, 229-230 (1957). Still, we accept the notion that the“conscientious judge will, as far as possible, make himself awareof his biases of this character, and, by that very self-knowledge,nullify their effect.” In re J.P. Linahan, Inc., 138 F.2d 650, 652(CA2 1943). The acquired skill and capacity to disregardextraneous matters is one of the requisites of judicial office. As amatter of sound administration, moreover, it may be necessaryand prudent to permit judges to preside over successive causesinvolving the same parties or issues. See Rules Governing Section2255 Proceedings for the United States District Courts, Rule 4(a)(“The original motion shall be presented promptly to the judge ofthe district court who presided at the movant’s trial and sentencedhim, or, if the judge who imposed sentence was not the trial judge,then it shall go to the judge who was in charge of that part of theproceedings being attacked by the movant”). The public characterof the prior and present proceedings tends to reinforce the resolveof the judge to weigh with care the propriety of his or her decisionto hear the case.

Out of this reconciliation of principle and practice comes therecognition that judge’s prior judicial experience and contactsneed not, and often do not, give rise to reasonable questionsconcerning impartiality.”

(emphasis supplied)

B25. In State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513,this Court has laid down that prejudging question of law, policy ordiscretion, Judge is not disqualified to hear case. It was held as under:

“25. Bias may be defined as preconceived opinion or apredisposition or predetermination to decide case or an issue ina particular manner, so much so that such predisposition does notleave the mind open to conviction. It is, in fact, condition ofmind, which sways judgments and renders the judge unable toexercise impartiality in particular case.

26. Bias has many forms. It may be pecuniary bias, personalbias, bias as to subject-matter in dispute, or policy bias etc. In theinstant case, we are not concerned with any of these forms ofbias. We have to deal, as we shall presently see, new form ofbias, namely, bias on account of judicial obstinacy.

27. Judges, unfortunately, are not infallible. As human beings, theycan commit mistakes even in the best of their judgments reflectiveof their hard labour, impartial things and objective assessment ofthe problem put before them. In the matter of interpretation ofstatutory provisions or while assessing the evidence in particularcase or deciding questions of law or facts, mistakes may becommitted bona fide which are corrected at the appellate stage.This explains the philosophy behind the hierarchy of courts. Sucha mistake can be committed even by judge of the High Courtwhich are corrected in the letters patent appeal, if available.

28. If judgment is overruled by the higher court, the judicialdiscipline requires that the judge whose judgment is overruled mustsubmit to that judgment. He cannot, in the same proceedings or incollateral proceedings between the same parties, rewrite theoverruled judgment. Even if it was decision on pure questionof law which came to be overruled, it cannot be reiterated in thesame proceedings at the subsequent stage by reason of the factthat the judgment of the higher court which has overruled that

judgment, not only binds the parties to the proceedings but alsothe judge who had earlier rendered that decision. That judge mayhave his occasion to reiterate his dogmatic views on particularquestion of common law or constitutional law in some other casebut not in the same case. If it is done, it would be exhibitive of hisbias in his own favour to satisfy his egoistic judicial obstinacy.

29. As pointed out earlier, an essential requirement of judicialadjudication is that the judge is impartial and neutral and is in aposition to apply his mind objectively to the facts of the case putup before him. If he is predisposed or suffers from prejudices orhas biased mind, he disqualifies himself from acting as judge.But Frank, J. of the United States in Linahan, In re, 138 2d 650says:

“If, however, ‘bias’ and ‘partiality’ be defined to mean the totalabsence of preconceptions in the mind of the judge, then no onehas ever had fair trial and no one will. The human mind, even atinfancy, is no blank piece of paper. We are born withpredispositions…. Much harm is done by the myth that, merelyby … taking the oath of office as judge, man ceases to behuman and strips himself of all predilections, becomes passionlessthinking machine.”

[See also Griffith and Street, Principles of Administrative Law(1973 Edn.), p. 155; Judicial Review of Administrative Actionby de Smith (1980 Edn.), p. 272; II Administrative Law Treatiseby Davis (1958 Edn.), p. 130.]

30.These remarks imply distinction between prejudging of factsspecifically relating to party, as against preconceptions orpredispositions about general questions of law, policy or discretion.The implication is that though in the former case, judge woulddisqualify himself, in the latter case, he may not. But this questiondoes not arise here and is left as it is.”

(emphasis supplied)

26. In Asok Pande v. Supreme Court of India, (2018) 5 SCC341, question of allocation of work and roster of Benches came up forconsideration. The Court has laid down that Chief Justice has to considerspecialization of each Judge and other factors. The Court observed:

“10. Recently, Constitution Bench of this Court in Campaignfor Judicial Accountability and Reforms v. Union of India,(2018) 1 SCC 196, held that the principle which was noticed andrecognised in the decision of this Court in State of Rajasthan v.Prakash Chand, (1998) 1 SCC 1,in relation to the jurisdictionand authority of the Chief Justice of the High Court “must applyproprio vigore as regards the power of the Chief Justice of India”.The position of the Chief Justice was reiterated with the followingobservations: (SCC pp. 199-200, paras 7 & 8)

“7. The aforesaid position though stated as regards the HighCourt, we are absolutely certain that the said principle isapplicable to the Supreme Court. We are disposed to think so.Unless such position is clearly stated, there will be utterconfusion. Be it noted, this has been also the convention of thisCourt, and the convention has been so because of the law. Wehave to make it clear without any kind of hesitation that theconvention is followed because of the principles of law andbecause of judicial discipline and decorum. Once the ChiefJustice is stated to be the Master of the Roster, he alone hasthe prerogative to constitute Benches. Needless to say, neithera two-Judge Bench nor three-Judge Bench can allocate thematter to themselves or direct the composition for constitutionof Bench. To elaborate, there cannot be any direction to theChief Justice of India as to who shall be sitting on the Benchor who shall take up the matter as that touches the compositionof the Bench. We reiterate such an order cannot be passed. Itis not countenanced in law and is not permissible.8. An institution has to function within certain parameters andthat is why there are precedents, rules and conventions. Asfar as the composition of Benches is concerned, we acceptthe principles stated in Prakash Chand, which were stated inthe context of the High Court, and clearly state that the sameshall squarely apply to the Supreme Court and there cannot beany kind of command or order directing the Chief Justice ofIndia to constitute particular Bench.”

12. Quite apart from the fact that the relief sought is contrary tolegal and constitutional principle, there is fundamental fallacy in

the approach of the petitioner, which must be set at rest. Thepetitioner seeks the establishment of binding precept under whicha three-Judge Bench in the Court of the Chief Justice must consistof the Chief Justice and his two seniormost colleagues alone whilethe Constitution Bench should consist of five seniormost Judges(or, as he suggests, three “seniormost” and two “juniormost”Judges). There is no constitutional foundation on the basis of whichsuch suggestion can be accepted. For one thing, as we havenoticed earlier, this would intrude into the exclusive duty andauthority of the Chief Justice to constitute Benches and to allocatecases to them. Moreover, the petitioner seems to harbour amisconception that certain categories of cases or certain courtsmust consist only of the seniormost Judges in terms ofappointment. Every Judge appointed to this Court under Article124 of the Constitution is invested with the equal duty of adjudicatingcases which come to the Court and are assigned by the ChiefJustice. Seniority in terms of appointment has no bearing on whichcases Judge should hear. It is settled position that judgmentdelivered by Judge speaks for the Court (except in the case ofa concurring or dissenting opinion). The Constitution makes astipulation in Article 124(3) for the appointment of Judges of theSupreme Court from the High Courts, from the Bar and fromamongst distinguished jurists. Appointment to the Supreme Courtis conditioned upon the fulfilment of the qualifications prescribedfor the holding of that office under Article 124(3). Once appointed,every Judge of the Court is entitled to and in fact, duty-bound, tohear such cases as are assigned by the Chief Justice. Judgesdrawn from the High Courts are appointed to this Court after longyears of service. Members of the Bar who are elevated to thisCourt similarly are possessed of wide and diverse experiencegathered during the course of the years of practice at the Bar. Tosuggest that any Judge would be more capable of decidingparticular cases or that certain categories of cases should beassigned only to the seniormost among the Judges of the SupremeCourt has no foundation in principle or precedent. To hold otherwisewould be to cast reflection on the competence and ability ofother Judges to deal with all cases assigned by the Chief Justicenotwithstanding the fact that they have fulfilled the qualificationsmandated by the Constitution for appointment to the office.

14. The Chartered High Courts of Allahabad, Bombay, Calcuttaand Madras have long history of over hundred and fifty years.Each of them has marked its sesquicentennial. Many High Courtsare not far behind in vintage. Some are of recent origin. Overthe course of their judicial history, High Courts have evolvedconventions in matters governing practice and procedure. Theseconventions provide guidance to the Chief Justice in the allocationof work, including in the constitution of Benches. The High Courtsperiodically publish roster of work under the authority of theChief Justice. The roster indicates the constitution of Benches,Division and Single. The roster will indicate the subject-matter ofthe cases assigned to each Bench. Different High Courts havetheir own traditions in regard to the period for which the publishedroster will continue, until fresh roster is notified. Individual Judgeshave their own strengths in terms of specialisation. The ChiefJustice of the High Court has to bear in mind the area ofspecialisation of each Judge, while deciding upon the allocation ofwork. However, specialisation is one of several aspects whichweigh with the Chief Justice.Anewly appointed Judge may berotated in variety of assignments to enable the Judge to acquireexpertise in diverse branches of law. Together with the need forspecialisation, there is need for Judges to have broadbasedunderstanding of diverse areas of law. In deciding upon theallocation of work and the constitution of Benches, Chief Justiceshave to determine the number of Benches which need to beassigned to particular subject-matter keeping in view the inflowof work and arrears. The Chief Justice of the High Court willhave regard to factors such as the pendency of cases in givenarea, the need to dispose of the oldest cases, prioritising criminalcases where the liberty of the subject is involved and the overallstrength, in terms of numbers, of the Court. Different High Courtshave assigned priorities to certain categories of cases such asthose involving senior citizens, convicts who are in jail and womenlitigants.These priorities are considered while preparing the roster.Impending retirements have to be borne in mind since theassignment given to Judge who is due to demit office wouldhave to be entrusted to another Bench when the vacancy arises.These are some of the considerations which are borne in mind.

The Chief Justice is guided by the need to ensure the orderlyfunctioning of the Court and the expeditious disposal of cases.The publication of the roster on the websites of the High Courtsprovides notice to litigants and lawyers about the distribution ofjudicial work under the authority of the Chief Justice. This Courtwas constituted in 1950. In the preparation of the roster and in thedistribution of judicial work, some of the conventions which areadopted in the High Courts are also relevant, subject tomodifications having regard to institutional requirements.15. Underlying the submission that the constitution of Benchesand the allocation of cases by the Chief Justice must be regulatedby procedure cast in iron is the apprehension that absent such aprocedure the power will be exercised arbitrarily. In his capacityas Judge, the Chief Justice is primus inter pares: the first amongequals. In the discharge of his other functions, the Chief Justiceof India occupies position which is sui generis. Article 124(1)postulates that the Supreme Court of India shall consist of ChiefJustice of India and other Judges. Article 146 reaffirms the positionof the Chief Justice of India as the head of the institution. Froman institutional perspective the Chief Justice is placed at the helmof the Supreme Court. In the allocation of cases and the constitutionof Benches the Chief Justice has an exclusive prerogative. As arepository of constitutional trust, the Chief Justice is an institutionin himself. The authority which is conferred upon the Chief Justice,it must be remembered, is vested in high constitutionalfunctionary.The authority is entrusted to the Chief Justice becausesuch an entrustment of functions is necessary for the efficienttransaction of the administrative and judicial work of the Court.The ultimate purpose behind the entrustment of authority to theChief Justice is to ensure that the Supreme Court is able to fulfiland discharge the constitutional obligations which govern andprovide the rationale for its existence. The entrustment of functionsto the Chief Justice as the head of the institution, is with thepurpose of securing the position of the Supreme Court as anindependent safeguard for the preservation of personal liberty.There cannot be presumption of mistrust. The oath of officedemands nothing less.”

(emphasis supplied)

AThus, rendering decision on any issue of law and the correctiveprocedure of it cannot be said to be ground for recusal of Judge;otherwise, no Judge can hear review, curative petition, or referencemade to the larger bench.

27. There may not be even one Judge in this Court who has notBtaken view one way or the other concerning Section 24 of the Act of2013, either in this Court or in the High Court. If the submission isaccepted, no Judge will have the power to decide such matter on thejudicial side. We have to deal with the cases every day in which similaror somewhat different questions are involved concerning the sameprovision. For having taken view once, if recusal is to be made, itCwould be very difficult to get Judge to hear and decide question oflaw. We have to correct the decision, apply the law, independently interpretthe provisions as per the fact situation of the case which may not begermane in the earlier matter. judgment is not halting-place, it isstepping stone. It is not like holy book which cannot be amended orDcorrected. It may also work to the advantage of all concerned if Judgehaving decided the matter either way is also member of the largerbench. Judge who had rendered any decision in smaller combinationis not disqualified from being part of larger Bench when reference ismade to the larger bench. Rather, it is consistent practice prevailing in

various High Courts as well as of this Court to include the same Judge/EJudges in larger Benches. Shri Mohan Parasaran, learned senior counselhas referred to Rule 8 of Delhi High Court Rules contained in Chapter3; Part which reads as under:

“8. Judge or Judges who refer case shall ordinarily sit onthe bench which considers the reference – The Judges or aFBench by whom any question or case is referred shall ordinarilybe members of the Division Bench or Full Bench, as the casemay be appointed to consider such question or case.”

The rule provides that Judge who referred case has to sit onthe larger Bench to consider the reference. In the present case also, theGreference has been made by me and my recusal has been sought. Thus,based on the consistent practice, we find that no ground for recusal ismade out.

28. Recusal has been prayed for on the ground of legal pre-disposition. Where recusal is sought on the ground, various questionsH

arise for consideration. Firstly, legal pre-disposition is the outcome of ajudicial process of interpretation, and the entire judicial system exists forrefining the same. There is absolutely nothing wrong in holding particularview in previous judgment for or against view canvassed by litigant.No litigant can choose, who should be on the Bench. He cannot say thata Judge who might have decided case on particular issue, which maygo against his interest subsequently or is part of larger Bench shouldnot hear his case. Furthermore, if party or his Counsel can at lengthargue on the question of recusal of the Judge before him, he can alsosuccessfully question the correctness of judgment rendered by him. Alitigant has got the right to make arguments which suit his cause beforea Judge/Judges having taken contrary view earlier. Moreover, if it isopen to one litigant to seek recusal and recusal is permitted, then theright has to be given to the opposite party to seek recusal of Judge whomay have decided case against his interest. In case it is permitted toeither side, that would end judicial independence. Then parties will bechoosing Benches to their liking. In that case, the Judges holding viewcan be termed to be disqualified. In case the submission of recusal isaccepted, the Judges having either side view, cannot hear the matterand have to recuse from hearing. In that case to find neutral Judgeswould be difficult to find and that would be subvert to the very conceptof independent judicial system. If litigants are given the right to seekrecusal of judge on the ground that in smaller Bench, view hasbeen taken by the Judge, the correctness of which has to be decided bythe larger Bench, which includes the same Judge, then on parity ofreasoning recusal might be sought on the ground of the judge havingtaken view one way or the other even in different case in whichsimilar issues are involved if the judge has decided similar issues earlier,in the same Court or in different Court. This would open the floodgates of forum shopping. Recusal upon an imagined apprehension oflegal pre-disposition would, in reality amount to acceding to the requestthat Judge having particular view and leanings in favour of the viewwhich suits particular litigant, should man the Bench. It would not onlybe allowing Bench hunting but would also be against the judicial disciplineand will erode the confidence of the common man for which the judicialsystem survives.

29. The question that comes to the mind is whether one of usshould recuse in order to prevent the embarrassment caused to Judge

ABCDEF

Aby member of the Bar, by seeking his recusal. Recusal would be theeasiest way to solve it. On the other hand, larger question arises. Ifrequest for recusal on the ground of legal pre-disposition in the form ofa judgment is acceded to, that would destroy the very edifice of anindependent judicial system.B30. The entire judicial system is based on sound constitutional

B30. The entire judicial system is based on sound constitutionalprinciples. The roster making power is bestowed on the Chief Justice ofIndia so that litigants are not able to choose the Judges before whomthey have to argue matter, and he is constitutional functionary whohas been enjoined with this task at the highest pedestal to exercise thepower of roster making. He is the repository of faith. Once he hasCexercised his power, it is not for the Judges to choose. As per their oath,they have to discharge their duties without fear and favour and in adispassionate manner without any ill will, bias towards litigants, or acause. The question which arises is whether merely delivering judgmentof which correctness is to be examined, would disqualifying JudgeDfrom being part of the larger Bench. The answer to the question has tobe in the negative as there is consistent practice of this Court whichhas evolved that the Judges who have rendered decision earlier insmaller combination, have also formed part of the larger Bench, andthere are umpteen occasions as mentioned above when Judges haveoverruled their own view. In LITEKY (supra), the United States SupremeECourt has held that rather it may be advantageous to have them on aBench hearing the matter as judgments are rendered after hearing thearguments of learned counsel for the parties. There is always scope tofurther develop the law and to correct the errors, and this can better bedone by having Judges on the Bench, who have earlier renderedFjudgments with respect to the subject-matter to which of the parties theview taken suits is not relevant.

31. If requests for recusal are acceded to for the asking, litigantswill be unscrupulously taking over the roster making powers of the ChiefJustice and that would tantamount to interference with the judicial system,Gby the mighty to have particular Bench by employing several meansand putting all kinds of pressures from all angles all around. It is the testof the ability of the judicial system to withstand such onslaught madefrom every nook and corner. Any recusal in the circumstances is ruledout, such prayer strengthens the stern determination not to succumb to

any such pressure and not to recuse on the ground on which recusalsought because for any reason, such prayer is permitted, even once, itwould tantamount to cowardice and give room to big and mighty to destroythe very judicial system. Moreover, recusal in such unjustifiedcircumstances, would become the norm.

32. It was vehemently urged by learned senior counsel on behalfof the respondents that they may feel embarrassed in arguing propositionof law which has been dealt with in the Indore Development Authorityelaborately. We find that given that arguments on recusal, spilling forover day, could be made vociferously, in belligerent fashion and withutmost ability, the submission that the learned counsel would feel diffidentin arguing proposition of law on merits, is difficult to accept. We feelthat there is no dearth of talent in this Court to argue matter mosteffectively even against the tide. The lawyers have compelled this Courttime and again to change its views and to refine the law. This Court isknown for not particular view but for refining the law and that hasbeen done with the help, ability and legal ingenuity of the lawyers toconvince this Court with aplomb to correct its view. That is how theprocess goes on as the entire system exists for the people of this country.Under the guise of that, reasonable man should not have even an iotaof doubt as to the impartiality of the Tribunal. If recusal is made, it wouldtantamount to giving room to unscrupulous litigant to have Judge oftheir choice who can share the views which are to be canvassed bythem. No such right can be given to any person under the aforesaidguise; there is no cause for any apprehension. There is no room toentertain the same. The plea cannot be termed anything other than Benchhunting, if it is said that until and unless the one which suits litigant isfound the matters are not to be argued.

33. It also passes comprehension whether in Constitution Bench,consisting of five Judges, prayer for recusal of Judge who has taken aparticular view earlier, is justified? The Bench consists of five Judges.Each Judge may have his own view. They would not succumb to viewheld by one of the judges. They may also have their own view in thematter. Are they also to be disqualified? In case the petitioner’s prayeris to be allowed, then they may want Bench of 5:0 in their favour or 4in favour and 1 against or 3 in favour and 2 against. That is not how thesystem can survive. The very idea of seeking recusal is inconceivableand wholly unjustified, and the prayer cannot be acceded to.

A34. The decision in Supreme Court Advocates-on-RecordAssociation & Anr. v. Union of India (recusal matter), (2016) 5 SCC808, has been referred to. Recusal of Justice Khehar (as His Lordshipthen was) was sought from the Constitution Bench. The principles havebeen summarised by this Court. The first principle which this Court hasdiscussed is the impartiality of Judge. It has been observed by JusticeBChelameswar that the first principle is that the Judge should be impartial.Merely having legal opinion has no connection with impartiality. It maybe within the purview of the legal correctness of the opinion. The secondtest is Latin maxim nemo judex in re sua i.e., no man shall be Judgein his own cause. judgment rendered by Judge is not in his ownCcause. Grant Hammond, former Judge of the Court of Appeal of NewZealand has in his book ‘Judicial Recusal’, which has been referred to,observed that English Common Law on recusal was both simple andhighly constrained; Judge could only be disqualified for direct pecuniaryinterest or consanguinity, affinity, friendship or enmity with party orbecause he was or had been party’s advocate. The Court has discussedDthe matter thus:

“12. Grant Hammond, former Judge of the Court of Appeal ofNew Zealand and an academician, in his book titled JudicialRecusal traced out principles on the law of recusal as developedin England in the following words:E

“The central feature of the early English common law on recusalwas both simple and highly constrained: Judge could only bedisqualified for direct pecuniary interest. What would todaybe termed ‘bias’, which is easily the most controversial groundfor disqualification, was entirely rejected as ground for recusalFof Judges, although it was not completely dismissed in relationto jurors.

This was in marked contrast to the relatively sophisticated canonlaw, which provided for recusal if Judge was suspected ofpartiality because of consanguinity, affinity, friendship or enmityGwith party, or because of his subordinate status towards aparty or because he was or had been party’s advocate.”

He also pointed out that in contrast in the United States of America,the subject is covered by legislation.

13.Dimes v. Grand Junction Canal, (1852) 3 HLC 759, is oneof the earliest cases where the question of disqualification of aJudge was considered. The ground was that he had some pecuniaryinterest in the matter. We are not concerned with the details ofthe dispute between the parties to the case. Lord ChancellorCottenham heard the appeal against an order of the Vice-Chancellor and confirmed the order. The order went in favour ofthe defendant Company. year later, Dimes discovered that LordChancellor Cottenham had shares in the defendant Company. Hepetitioned the Queen for her intervention. The litigation had longand chequered history, the details of which are not material forus. Eventually, the matter reached the House of Lords. The Housedismissed the appeal of Dimes on the ground that setting aside ofthe order of the Lord Chancellor would still leave the order of theVice-Chancellor intact as Lord Chancellor had merely affirmedthe order of the Vice-Chancellor. However, the House of Lordsheld that participation of Lord Cottenham in the adjudicatoryprocess was not justified. Though Lord Campbell observed: (Dimescase, ER p. 315)

“… No one can suppose that Lord Cottenham could be, in theremotest degree, influenced by the interest he had in thisconcern: but, my Lords, it is of the last importance that themaxim that no man is to be Judge in his own cause should beheld sacred. And that is not to be confined to cause in whichhe is party, but applies to cause in which he has an interest.… This will be lesson to all inferior tribunals to take care notonly that in their decrees they are not influenced by theirpersonal interest, but to avoid the appearance of labouring undersuch an influence.”

14. Summing up the principle laid down by the abovementionedcase, Hammond observed as follows:

“The ‘no-pecuniary interest’ principle as expressed in Dimesrequires judge to be automatically disqualified when there isneither actual bias nor even an apprehension of bias on thepart of that judge. The fundamental philosophical underpinningof Dimes is therefore predicated on conflict of interestapproach.”

A15. The next landmark case on the question of “bias” is R. v.Gough, 1993 AC 646. Gough was convicted for an offence ofconspiracy to rob and was sentenced to imprisonment for fifteenyears by the trial court. It was trial by Jury. After the convictionwas announced, it was brought to the notice of the trial court thatone of the jurors was neighbour of the convict. The convictBappealed to the Court of Appeal unsuccessfully. One of the groundson which the conviction was challenged was that, in view of thefact that one of the jurors being neighbour of the convict presenteda possibility of bias on her part and therefore the conviction isunsustainable. The Court of Appeal noticed that there are twoClines of authority propounding two different tests for determiningdisqualification of Judge on the ground of bias:

(1) “real danger” test; and

(2) “reasonable suspicion” test.

The Court of Appeal confirmed the conviction by applying the“real danger” test.

16. The matter was carried further to the House of Lords. LordGoff noticed that there are series of authorities which are “notonly large in number but bewildering in their effect”. After analysingthe judgment in Dimes, Lord Goff held: (Gough case, AC p. 661F-G)

“In such case, therefore, not only is it irrelevant that therewas in fact no bias on the part of the tribunal, but there is noquestion of investigating, from an objective point of view,Fwhether there was any real likelihood of bias, or any reasonablesuspicion of bias, on the facts of the particular case. The natureof the interest is such that public confidence in the administrationof justice requires that the decision should not stand.”

In other words, where Judge has pecuniary interest, no furtherinquiry as to whether there was “real danger” or “reasonableGsuspicion” of bias is required to be undertaken. But in other cases,such an inquiry is required and the relevant test is the “real danger”test: (Gough case, AC pp. 661 G-H-662 A-B)

“… But [in other cases], the inquiry is directed to the questionwhether there was such degree of possibility of bias on the

part of the tribunal that the court will not allow the decision tostand. Such question may arise in wide variety ofcircumstances. These include … cases in which the memberof the tribunal has an interest in the outcome of the proceedings,which falls short of direct pecuniary interest. Such interestsmay vary widely in their nature, in their effect, and in theirrelevance to the subject-matter of the proceedings; and thereis no rule … that the possession of such an interestautomatically disqualifies the member of the tribunal from sitting.Each case falls to be considered on its own facts.”

17. The learned Judge examined various important cases on thesubject and finally concluded: (Gough case, AC p. 670 E-G)

“… Finally, for the avoidance of doubt, I prefer to state thetest in terms of real danger rather than real likelihood, to ensurethat the court is thinking in terms of possibility rather thanprobability of bias. Accordingly, having ascertained the relevantcircumstances, the court should ask itself whether, having regardto those circumstances, there was real danger of bias on thepart of the relevant member of the tribunal in question, in thesense that he might unfairly regard (or have unfairly regarded)with favour, or disfavour, the case of party to the issue underconsideration by him….”

18. Lord Woolf agreed with Lord Goff in his separate judgment.He held: (Gough case, AC p. 673 F-G)

“… There is only one established special category and thatexists where the tribunal has pecuniary or proprietary interestin the subject-matter of the proceedings as in Dimes v. GrandJunction Canal. The courts should hesitate long before creatingany other special category since this will immediately createuncertainty as to what are the parameters of that categoryand what is the test to be applied in the case of that category.The real danger test is quite capable of producing the rightanswer and ensure that the purity of justice is maintained acrossthe range of situations where bias may exist.”

19. In substance, the Court held that in cases where the Judgehas pecuniary interest in the outcome of the proceedings, hisdisqualification is automatic. No further enquiry whether such an

interest lead to “real danger” or gave rise to “reasonablesuspicion” is necessary. In cases of other interest, the test todetermine whether the Judge is disqualified to hear the case is the“real danger” test.

20. The R. v. Bow Street Metropolitan Stipendiary Magistrate,ex p Pinochet Ugarte (No.2), (2000) 1 AC 119, added onemore category to the cases of automatic disqualification for aJudge. Pinochet, former Chilean dictator, was sought to bearrested and extradited from England for his conduct during hisincumbency in office. The issue was whether Pinochet was entitledto immunity from such arrest or extradition. Amnesty International,

charitable organisation, participated in the said proceedings withthe leave of the Court. The House of Lords held that Pinochet didnot enjoy any such immunity. Subsequently, it came to light thatLord Hoffman, one of the members of the Board which heardPinochet case, was Director and Chairman of company(known as AICL) which was closely linked with AmnestyInternational. An application was made to the House of Lords toset aside the earlier judgment on the ground of bias on the part ofLord Hoffman.

21. The House of Lords examined the following questions:

(i) Whether the connection of Lord Hoffman with AmnestyInternational required him to be automatically disqualified?

(ii) Whether an enquiry into the question whether cause of LordHoffman’s connection with Amnesty International posed realdanger or caused reasonable apprehension that his judgment isbiased — is necessary?

(iii) Did it make any difference that Lord Hoffman was only amember of company associated with Amnesty Internationalwhich was in fact interested in securing the extradition of SenatorPinochet?

22. Lord Wilkinson summarised the principles on which Judgeis disqualified to hear case. As per Lord Wilkinson: (Pinochetcase, AC pp. 132 G-H-133 A-C)

“The fundamental principle is that man may not be Judgein his own cause. This principle, as developed by the courts,

has two very similar but not identical implications. First it maybe applied literally: if Judge is in fact party to the litigationor has financial or proprietary interest in its outcome then heis indeed sitting as Judge in his own cause. In that case, themere fact that he is party to the action or has financial orproprietary interest in its outcome is sufficient to cause hisautomatic disqualification. The second application of theprinciple is where Judge is not party to the suit and doesnot have financial interest in its outcome, but in some otherway his conduct or behaviour may give rise to suspicion thathe is not impartial, for example because of his friendship witha party. This second type of case is not strictly speaking anapplication of the principle that man must not be Judge in hisown cause, since the Judge will not normally be himselfbenefiting, but providing benefit for another by failing to beimpartial.

In my judgment, this case falls within the first category of case,viz. where the Judge is disqualified because he is Judge inhis own cause. In such case, once it is shown that the Judgeis himself party to the cause, or has relevant interest in itssubject-matter, he is disqualified without any investigation intowhether there was likelihood or suspicion of bias. The merefact of his interest is sufficient to disqualify him unless he hasmade sufficient disclosure….”

And framed the question: (AC p. 134B-C)

“… the question then arises whether, in non-financial litigation,anything other than financial or proprietary interest in the outcomeis sufficient automatically to disqualify man from sitting asJudge in the cause.”

(emphasis supplied)

He opined that although the earlier cases have

“all dealt with automatic disqualification on the grounds ofpecuniary interest, there is no good reason in principle for so limitingautomatic disqualification”. (AC p. 135B)

23. Lord Wilkinson concluded that Amnesty International and itsassociate company known as AICL, had non-pecuniary interest

established that Senator Pinochet was not immune from the processof extradition. He concluded that: (Pinochet case, AC p. 135C-D)

“… the matter at issue does not relate to money or economicadvantage but is concerned with the promotion of the cause, theBrationale disqualifying Judge applies just as much if the Judge’sdecision will lead to the promotion of cause in which the Judgeis involved together with one of the parties.”

(emphasis supplied)

24. After so concluding, dealing with the last question, whetherthe fact that Lord Hoffman was only member of AICL but nota member of Amnesty International made any difference to theprinciple, Lord Wilkinson opined that: (Pinochet case, AC p. 132H-133A)

even though Judge may not have financial interest in theoutcome of case, but in some other way his conduct orbehaviour may give rise to suspicion that he is not impartial….

and held that: (AC p. 135 E-F)

“… If the absolute impartiality of the judiciary is to bemaintained, there must be rule which automaticallydisqualifies Judge who is involved, whether personally or asa Director of company, in promoting the same causes in thesame organisation as is party to the suit. There is no roomfor fine distinctions….”

This aspect of the matter was considered in P.D. Dinakaran (1)v. Judges Inquiry Committee, (2011) 8 SCC 380

25. From the above decisions, in our opinion, the following principlesemerge:

25.1. If Judge has financial interest in the outcome of case,he is automatically disqualified from hearing the case.

25.2. In cases where the interest of the Judge in the case is otherthan financial, then the disqualification is not automatic but anenquiry is required whether the existence of such an interest

disqualifies the Judge tested in the light of either on the principleof “real danger” or “reasonable apprehension” of bias.

25.3. The Pinochet case added new category i.e. that the Judgeis automatically disqualified from hearing case where the Judgeis interested in cause which is being promoted by one of theparties to the case.

26. It is nobody’s case that, in the case at hand, Justice Kheharhad any pecuniary interest or any other interest falling under thesecond of the abovementioned categories. By the very nature ofthe case, no such interest can arise at all.

27. The question is whether the principle of law laid down inPinochet case is attracted. In other words, whether Justice Kheharcan be said to be sharing any interest which one of the parties ispromoting. All the parties to these proceedings claim to bepromoting the cause of ensuring the existence of an impartial andindependent judiciary. The only difference of opinion between theparties is regarding the process by which such result is to beachieved. Therefore, it cannot be said that Justice Khehar sharesany interest which any one of the parties to the proceeding isseeking to promote.

28. The implication of Shri Nariman’s submission is that JusticeKhehar would be predetermined to hold the impugned legislationto be invalid. We fail to understand the stand of the petitioners. Ifsuch apprehension of the petitioners comes true, the beneficiarieswould be the petitioners only. The grievance, if any, on this groundshould be on the part of the respondents.

29. The learned Attorney General appearing for the Union ofIndia made an emphatic statement that the Union of India has noobjection for Justice Khehar hearing the matter as PresidingJudge of the Bench.

30. No precedent has been brought to our notice, where courtsruled at the instance of the beneficiary of bias on the part of theadjudicator, that judgment or an administrative decision is eithervoidable or void on the ground of bias. On the other hand, it is awell-established principle of law that an objection based on bias

of the adjudicator can be waived. Courts generally did not entertainsuch objection raised belatedly by the aggrieved party:

“The right to object to disqualified adjudicator may be waived,and this may be so even where the disqualification is statutory.The court normally insists that the objection shall be taken assoon as the party prejudiced knows the facts which entitle himto object. If, after he or his advisors know of the disqualification,they let the proceedings continue without protest, they are heldto have waived their objection and the determination cannotbe challenged.”

In our opinion, the implication of the above principle is that only aparty who has suffered or is likely to suffer an adverse adjudicationbecause of the possibility of bias on the part of the adjudicatorcan raise the objection.

31. The significant power as described by Shri Nariman does notDinhere only to the members of the Collegium, but inheres in everyJudge of this Court who might be called upon to express his opinionregarding the proposals of various appointments of the High CourtJudges, Chief Justices or Judges of this Court, while the membersof the Collegium are required to exercise such “significant power”with respect to each and every appointment of the abovementionedEcategories, the other Judges of this Court are required to exercisesuch “significant power”, at least with respect to the appointmentsto or from the High Court with which they were earlier associatedwith either as Judges or Chief Justices. The argument of ShriNariman, if accepted would render all the Judges of this CourtFdisqualified from hearing the present controversy. result notlegally permitted by the “doctrine of necessity”.

Justice J.S. Khehar, in his opinion, has observed thus:

“57. The reason that was pointed out against me, for seeking myrecusal was, that I was part of the 1 + 4 Collegium. But thatshould have been disqualification for Anil R. Dave, J. as well.When he commenced hearing of the matters, and till 7-4-2015, hesuffered the same alleged disqualification. Yet, the objection raisedagainst me, was not raised against him. When confronted, MrFali S. Nariman vociferously contested, that he had not soughtthe recusal of Anil R. Dave, J. He supported his assertion with

proof. One wonders, why did he not seek the recusal of Anil R.Dave, J.? There is no doubt about the fact, that I have been amember of the 1 + 4 Collegium, and it is likely that I would alsoshortly become Member of NJAC, if the present challenge raisedby the petitioners was not to succeed. I would therefore remain apart of the selection procedure, irrespective of the process whichprevails. That however is the position with reference to four of us(on the instant five-Judge Bench). Besides me, my colleagues onthe Bench — J. Chelameswar, Madan B. Lokur and KurianJoseph, JJ. would in due course be part of the Collegium (if thewrit petitioners before this Court were to succeed), or alternatively,would be part of NJAC (if the writ petitioners were to fail). Insuch eventuality, the averment of conflict of interest, ought tohave been raised not only against me, but also against my threecolleagues. But, that was not the manner in which the issue hasbeen canvassed. In my considered view, the prayer for my recusalis not well founded. If I were to accede to the prayer for myrecusal, I would be initiating wrong practice, and laying down awrong precedent. Judge may recuse at his own, from caseentrusted to him by the Chief Justice. That would be matter ofhis own choosing. But recusal at the asking of litigating party,unless justified, must never to be acceded to. For that would givethe impression, of the Judge had been scared out of the case, justby the force of the objection. Judge before he assumes hisoffice, takes an oath to discharge his duties without fear or favour.He would breach his oath of office, if he accepts prayer forrecusal, unless justified. It is my duty to discharge my responsibilitywith absolute earnestness and sincerity. It is my duty to abide bymy oath of office to uphold the Constitution and the laws. Mydecision to continue to be part of the Bench, flows from theoath which I took, at the time of my elevation to this Court.

(emphasis supplied)

Justice Lokur, in his opinion, has observed:

“60. In my respectful opinion, when an application is made forthe recusal of Judge from hearing case, the application ismade to the Judge concerned and not to the Bench as whole.Therefore, my learned brother Justice Khehar is absolutely correctin stating that the decision is entirely his, and I respect his decision.

65. The issue of recusal from hearing case is not as simple as itappears. The questions thrown up are quite significant and sinceit appears that such applications are gaining frequency, it is timethat some procedural and substantive rules are framed in thisregard. If appropriate rules are framed, then, in given case, itwould avoid embarrassment to other Judges on the Bench.”

It has been held that decision to recuse is that of the Judgeconcerned, and unjustified pressure should never be allowed.

35. Shri Tushar Mehta, learned Solicitor General, has relied uponthe decision in Subrata Roy Sahara v. Union of India & Ors., (2014)8 SCC 470. Recusal of the Bench was sought by way of filing petition.The embarrassment which is caused by such prayer, concept ofcorrection of mistake, if any, recognition of mistake and its rectificationhave also been considered. This Court has observed:

“7. Now the embarrassment part. Having gone through thepleadings of the writ petition we were satisfied that nothingexpressed therein could be assumed as would humiliate ordiscomfort us by putting us to shame. To modify an earlier orderpassed by us for mistake we may have committed, which isapparent on the face of the record, is jurisdiction we regularlyexercise under Article 137 of the Constitution of India. Added tothat, it is open to party to file curative petition as held by thisCourt in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC388. These jurisdictions are regularly exercised by us, when madeout, without any embarrassment. Correction of wrong orderwould never put anyone to shame. Recognition of mistake, andits rectification, would certainly not put us to shame. In ourconsidered view, embarrassment would arise when the orderassailed is actuated by personal and/or extraneous considerations,and the pleadings record such an accusation. No such allegationwas made in the present writ petition. And therefore, we werefully satisfied that the feeling entertained by the petitioner, thatwe would not pass an appropriate order, if the order impugneddated 4-3-2014 was found to be partly or fully unjustified, wastotally misplaced.”

36. In Subrata Roy Sahara (supra) this Court has also referredto the decision of Mr. R.K. Anand’s case (supra) in which it has been

observed that the path of recusal is very often convenient and softoption as Judge has no vested interest in doing particular matter. It isthe Constitution of India which enjoins Judge to duly and faithfully andto the best of his ability, knowledge, and judgment, perform the duties ofhis office without fear or favour. Affronts, jibes, and consciously plannedsnubs should not deter us from discharging our onerous responsibility.This Court has observed:

“10. We have recorded the above narration, lest we are accusedof not correctly depicting the submissions as they were canvassedbefore us. In our understanding, the oath of our office required usto go ahead with the hearing. And not to be overawed by suchsubmissions. In our view, not hearing the matter, would constitutean act in breach of our oath of office, which mandates us to performthe duties of our office, to the best of our ability, without fear orfavour, affection or ill will.

11. This is certainly not the first time when solicitation for recusalhas been sought by the learned counsel. Such recordedperemptory prayer was made by Mr R.K. Anand, an eminentSenior Advocate, before the High Court of Delhi seeking therecusal of Mr Justice Manmohan Sarin from hearing his personalcase. Mr Justice Manmohan Sarin while declining the requestmade by Mr R.K. Anand, observed as under:

“The path of recusal is very often convenient and softoption. This is especially so since Judge really has no vestedinterest in doing particular matter. However, the oath of officetaken under Article 219 of the Constitution of India enjoins theJudge to duly and faithfully and to the best of his knowledgeand judgment, perform the duties of office without fear orfavour, affection or ill will while upholding the Constitution andthe laws. In case, where unfounded and motivated allegationsof bias are sought to be made with view of forum hunting/Bench preference or brow-beating the Court, then, succumbingto such pressure would tantamount to not fulfilling the oathof office.”

The above determination of the High Court of Delhi was assailedbefore this Court in R.K. Anand v. Delhi High Court, (2009) 8SCC 106. The determination of the High Court whereby Mr Justice

Manmohan Sarin declined to withdraw from the hearing of thecase came to be upheld, with the following observations: (SCC p.192, para 263)

“263. The above passage, in our view, correctly sums upwhat should be the court’s response in the face of requestfor recusal made with the intent to intimidate the court orto get better of an ‘inconvenient’ Judge or to obfuscatethe issues or to cause obstruction and delay the proceedingsor in any other way frustrate or obstruct the course ofjustice.”

(emphasis supplied)

In fact, the observations of the High Court of Delhi and those ofthis Court reflected exactly how it felt, when the learned counseladdressed the Court at the commencement of the hearing. If itwas the learned counsel’s posturing antics, aimed at bench-huntingor bench-hopping (or should we say, bench-avoiding), we wouldnot allow that. Affronts, jibes and carefully and consciously plannedsnubs could not deter us from discharging our onerous responsibility.We could at any time during the course of hearing walk out andmake way for another Bench to decide the matter, if ever we feltthat that would be the righteous course to follow. Whether or notit would be better for another Bench to hear this case will emergefrom the conclusions, we will draw, in the course of the presentdetermination.

131. We shall now deal with the substance, and the import, of thejudgments relied upon. It is not the case of the petitioner that wehave any connection with either the two Companies underreference, or any other company/firm which constitutes the SaharaGroup. We may state, that neither of us has even single sharewith the two Companies concerned or with any other company/firm comprising of the Sahara Group. In order to remove allambiguity in the matter we would further state, that neither of us,nor any of our dependent family members, own even singleshare in any company whatsoever. Neither of us has been assistedin this case, for its determination on merits by any law clerk, internor staff member, while hearing, dealing with or deciding the

controversy. Nor has any assertion in this behalf been madeagainst us by the petitioner or his learned counsel. Accordingly,the factual position, which was the basis of the decisions reliedupon by the learned counsel, is not available in the facts andcircumstances of this case. In the above view of the matter, it isbut natural to conclude, that none of the judgments relied upon bythe learned Senior Counsel for the petitioner, on the subject ofbias, are applicable to the facts and circumstances of this case.We are satisfied that none of the disguised aspersions cast by thelearned Senior Counsel, would be sufficient to justify the invocationof the maxim, that justice must not actually be done, but must alsoappear to be done. As already noticed above, even though ourcombination as Bench, did not exist at the time, when the presentpetition was filed, Special Bench, with the present composition,was constituted by the Hon’ble the Chief Justice, as matter ofhis conscious determination. No litigant can be permitted todissuade us in discharging the onerous responsibility assigned tous by the Hon’ble the Chief Justice.

135. Dr. Rajeev Dhavan, learned Senior Counsel also accusedus of having predisposition in respect of the controversy. Thispredisposition, according to him, appeared to be on the basis of astrong commitment towards the “other side”. This assertion wasrepeated several times during the hearing. But, which is the otherside? In terms of our order dated 31-8-2012 the only gainer on theother side is the Government of India. The eighth direction of ourorder dated 31-8-2012, reads as under: (SCC p. 172, para 326)“326.8. SEBI (WTM) if, after the verification of the detailsfurnished, is unable to find out the whereabouts of all orany of the subscribers, then the amount collected from suchsubscribers will be appropriated to the Government ofIndia.”

(emphasis supplied)

If the “other side”, is the Government of India, there is certainlyno substance in the aspersion cast by the learned counsel. Justthe above aspect of the matter is sufficient to burst the bubble ofall the carefully crafted insinuations, systematically offloaded, bythe learned counsel for effect and impact.

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137. The observations recorded in the above judgment in JaswantSingh v. Virender Singh, 1995 Supp (1) SCC 384, are fullyapplicable to the mannerism and demeanour of the petitioner MrSubrata Roy Sahara and some of the learned Senior Counsel. Wewould have declined to recuse from the matter, even if the “otherside”, had been private party. For, our oath of office requires usto discharge our obligations, without fear or favour. We thereforealso commend to all courts, to similarly repulse all baseless andunfounded insinuations, unless of course, they should not be hearinga particular matter, for reasons of their direct or indirectinvolvement. The benchmark, that justice must not only be donebut should also appear to be done, has to be preserved at all costs.”

37. In R.K. Anand v. Registrar, Delhi High Court, (2009) 8SCC 106, it was observed:

264. We are constrained to pause here for moment and toexpress grave concern over the fact that lately such tendenciesand practices are on the increase. We have come across instanceswhere one would simply throw stone on Judge (who is quitedefenceless in such matters!) and later on cite the gratuitous attackas ground to ask the Judge to recuse himself from hearing acase in which he would be appearing. Such conduct is bound tocause deep hurt to the Judge concerned but what is of far greaterimportance is that it defies the very fundamentals of administrationof justice. motivated application for recusal, therefore, needs tobe dealt with sternly and should be viewed ordinarily as interferencein the due course of justice leading to penal consequences.”

38. In Kamini Jaiswal v. Union of India & Anr., (2018) 1 SCC156, this Court has dealt with the matter of recusal thus:

“24. There is no conflict of interest in such matter. In case aJudge is hearing matter and if he comes to know that any partyis unscrupulously trying to influence the decision-making orGindulging in malpractices, it is incumbent upon the Judge to takecognizance of such matter under the Contempt of Courts Actand to deal with and punish such person in accordance with lawas that is not the conflict of interest but the purpose for which theentire system exists. Such things cannot be ignored and recusalof Judge cannot be asked on the ground of conflict of interest, itHwould be the saddest day for the judicial system of this country toignore such aspects on the unfounded allegations and materials.It was highly improper for the petitioner to allege conflict of interestin the petition filed that the Hon’ble Chief Justice of India shouldnot hear on judicial side or allocate the matter on the administrativeside. It appears that in order to achieve this end the particularrequest has been made by filing successive petitions day after theother and prayer was made to avoid the Hon’ble Chief Justice ofIndia to exercise the power for allocation of cases which wasclearly an attempt at forum hunting and has to be deprecated inthe strongest possible words. Making such scandalous remarksalso tantamount to interfering with administration of justice, anadvocate cannot escape the responsibility on the ground that hedrafted the same in his/her personal capacity as laid down inShamsher Singh Bedi v. High Court of Punjab & Haryana,(1996) 7 SCC 99. In Charan Lal Sahu v. Union of India, (1988)3 SCC 255, this Court has observed that in petition filed underArticle 32 in the form of PIL attempt of mudslinging against theadvocates, Supreme Court and also against the other constitutionalinstitutions indulged in by an advocate in careless manner,meaningless and as contradictory pleadings, clumsy allegations,contempt was ordered to be drawn. The Registry was directednot to entertain any PIL petition of the petitioner in future.

27. This Court considered various categories of forum shoppingin Union of India v. Cipla Ltd., (2009) 8 SCC 106. Even makingallegations of per se conflict of interest require the matter couldbe transferred to another Bench, has also been held to be anotherform of forum hunting. This Court has considered various decisionsthus: (SCC pp. 318-20, paras 146-155)

“146. The learned Solicitor General submitted that Cipla wasguilty of forum shopping inasmuch as it had filed petitions in theBombay High Court, the Karnataka High Court and also anaffidavit in the Delhi High Court as member of the Bulk DrugManufacturers Association and had eventually approached theAllahabad High Court for relief resulting in the impugned judgmentand order dated 3-3-2004. It was submitted that since Cipla hadapproached several constitutional courts for relief, the proceedingsinitiated in the Allahabad High Court clearly amount to forumshopping.

147. We are not at all in agreement with the learned SolicitorGeneral. Forum shopping takes several hues and shades andCipla’s petitions do not fall under any category of forum shopping.

148. classic example of forum shopping is when litigantapproaches one Court for relief but does not get the desired reliefand then approaches another Court for the same relief. Thisoccurred in Rajiv Bhatia v. State (NCT of Delhi), (1999) 8 SCC525. The respondent mother of young child had filed petitionfor writ of habeas corpus in the Rajasthan High Court andapparently did not get the required relief from that Court. Shethen filed petition in the Delhi High Court also for writ ofhabeas corpus and obtained the necessary relief. Notwithstandingthis, this Court did not interfere with the order passed by the DelhiHigh Court for the reason that this Court ascertained the views ofthe child and found that she did not want to even talk to her adoptiveparents and therefore the custody of the child granted by the DelhiHigh Court to the respondent mother was not interfered with.The decision of this Court is on its own facts, even though it is aclassic case of forum shopping.

149. In Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013)15 SCC 790, this Court noted that jurisdiction in court is notattracted by the operation or creation of fortuitous circumstances.In that case, circumstances were created by one of the parties tothe dispute to confer jurisdiction on particular High Court. Thiswas frowned upon by this Court by observing that to allow theassumption of jurisdiction in created circumstances would onlyresult in encouraging forum shopping.

150. Another case of creating circumstances for the purposesof forum shopping was World Tanker Carrier Corpn. v. SNPShipping Services (P) Ltd., (1998) 5 SCC 310, wherein it wasobserved that the respondent-plaintiff had made deliberateattempt to bring the cause of action, namely, collision betweentwo vessels on the high seas within the jurisdiction of the BombayHigh Court. Bringing one of the vessels to Bombay in order toconfer jurisdiction on the Bombay High Court had the characterof forum shopping rather than anything else.

151. Another form of forum shopping is taking advantage ofa view held by particular High Court in contrast to differentview held by another High Court. In Ambica Industries v. CCE,(2007) 6 SCC 769, the assessee was from Lucknow. It challengedan order passed by the Customs, Excise and Service Tax AppellateTribunal (“CESTAT”) located in Delhi before the Delhi High Court.CESTAT had jurisdiction over the State of Uttar Pradesh, NCTof Delhi and the State of Maharashtra. The Delhi High Court didnot entertain the proceedings initiated by the assessee for want ofterritorial jurisdiction. Dismissing the assessee’s appeal this Courtgave the example of an assessee affected by an assessment orderin Bombay invoking the jurisdiction of the Delhi High Court totake advantage of the law laid down by the Delhi High Court oran assessee affected by an order of assessment made at Bombayinvoking the jurisdiction of the Allahabad High Court to takeadvantage of the law laid down by it and consequently evade thelaw laid down by the Bombay High Court. It was said that thiscould not be allowed and circumstances such as this would leadto some sort of judicial anarchy.

152. Yet another form of forum shopping was noticed inJagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501,wherein it was held that successive bail applications filed by alitigant ought to be heard by the same learned Judge, otherwisean unscrupulous litigant would go on filing bail applications beforedifferent Judges until favourable order is obtained. Unless thispractice was nipped in the bud, it would encourage unscrupulouslitigants and encourage them to entertain the idea that they canindulge in forum shopping, which has no sanction in law andcertainly no sanctity.

153. Another category of forum shopping is approachingdifferent courts for the same relief by making minor change inthe prayer clause of the petition. In Udyami Evam KhadiGramodyog Welfare Sanstha v. State of U.P., (2008) 1 SCC560, it was noticed by this Court that four writ applications werefiled by litigant and although the prayers were apparentlydifferent, the core issue in each petition centred round the recoveryof the amount advanced by the bank. Similarly, substituting some

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Apetitioners for others with view to confer jurisdiction on aparticular court would also amount to forum shopping by that groupof petitioners.

154. Finally and more recently, in Supreme CourtAdvocates-on-Record Assn. v. Union of India (Recusal Matter),B(2016) 5 SCC 808, Khehar, J. noticed yet another form of forumshopping where litigant makes allegations of perceived conflictof interest against Judge requiring the Judge to recuse from theproceedings so that the matter could be transferred to anotherJudge.

155. The decisions referred to clearly lay down the principlethat the Court is required to adopt functional test vis-à-vis thelitigation and the litigant. What has to be seen is whether there isany functional similarity in the proceedings between one courtand another or whether there is some sort of subterfuge on thepart of litigant. It is this functional test that will determine whetherDa litigant is indulging in forum shopping or not.”

39. In Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC280, this Court has considered derogatory remarks and efforts to destroythe system. The relevant portions are extracted hereunder:

E“12. This Court in M.B. Sanghi v. High Court of Punjab andHaryana, (1991) 3 SCC 600, while examining similar caseobserved: (SCC p. 602, para 2)

“2. … The foundation of [judicial] system which is based onthe independence and impartiality of those who man it will beFshaken if disparaging and derogatory remarks are made againstthe presiding judicial officers with impunity. It is high time thatwe realise that the much cherished judicial independence hasto be protected not only from the executive or the legislaturebut also from those who are an integral part of the system. Anindependent judiciary is of vital importance to any free society.”

G13. In Asharam M. Jain v. A.T. Gupta, (1983) 4 SCC 125, whiledealing with the issue, this Court observed as under: (SCC p. 127,para 3)

“3. … The strains and mortification of litigation cannot beallowed to lead litigants to tarnish, terrorise and destroy the

system of administration of justice by vilification of Judges. Itis not that Judges need be protected; Judges may well takecare of themselves. It is the right and interest of the public inthe due administration of justice that has to be protected.”

14. In Jennison v. Baker, (1972) 2 QB 52, All ER p. 1006d, itwas observed: (QB p. 66 H)

“… ‘The law should not be seen to sit by limply, while thosewho defy it go free, and those who seek its protection losehope.’”

40. The decision in All India Institute of Medical Sciences v.Prof. Kaushal K. Verma, (2015) 220 DLT 446 (W.P. [C] No.4103/2014), rendered by one of us, Ravindra Bhat, J., has also been referred,thus:

“25. Before ending this unusually prolix order, which can run intothe danger of self-vindication, the Court observes that requestsfor recusal are to be based on reasonable apprehensions; theycannot be speculative or fanciful suppositions. An observation thatneeds to be emphasized is that recusals generally, and especiallythose fuelled by unjustified demands can be burdensome on thejudges who are eventually called upon to decide the cause.Whenever made, the concerned court or judge so charged is boundto take it seriously, as it undermines what is the bedrock of justicedelivery- impartiality. To borrow the words of Beverely Mclachlin(Chief Justice of Canada) (“Judging in Democratic State”) :

“…judges are not living Oracles. They are human beings,trained in the law, who struggle to understand the situationsbefore them and to resolve them in accordance with the lawand their consciences. And judges must learn to live with beingwrong. As human beings, judges learn early in their career todeal with criticism. Every new judge dons the judicial robesresolved never to make mistake. And every new judge fails.Decisions must sometimes be made without the opportunityfor full reflection. The law may not be entirely clear. The truthmay be elusive. In the result, even the best judges inevitablyare found to have erred. The errors are publicly identified byappellate judges and laid plain for all to see. The fact that

appellate judges themselves have been known to err mayprovide only limited consolation.”

If one may add, the greater the experience of the judge, the moreacutely she or he is aware of her or his fallibility and the pitfalls ofacting on impulse or prejudice. The journey, which begins withcertainty, later leads to path of many grey areas. Given thatlanguage itself is an imperfect medium, words are but vesselsgiving shape to ideas and that no human being is perfect, no judgecan claim to be perfect in communicating ideas. The emphasis ona phrase here or an expression there, bereft of anything more,would not ipso facto disclose predilection, or pre-disposition todecide in particular manner.”

There is concurring opinion thus:

“1. I have seen the draft of the order, prepared by my brother S.Ravindra Bhat, J., on the request of recusal by the Division Benchheaded by him. I fully concur with the conclusions reached byhim and the reasoning leading thereto. I would only add that therequest for recusal by the Bench ignores the fact that it comprisesof two Judges each of whom have an independent mind to apply.The presence of another Judge with equal say strengthens therigor of the judicial scrutiny and cannot be undermined.”

41. Mr. Shyam Diwan, learned senior counsel has referred to theforeign Rules stating “what is at stake is the confidence which the courtsin democratic society must inspire in the public. Accordingly, anyjudge in respect of whom there is legitimate reason to fear lack ofimpartiality must withdraw”. In support of his submission, he has referredto Section 47 of Title 28, Judiciary and Judicial Procedure, 1948 of UnitedStates of America; and Rule 24(5)(b) of Rules of Court of the EuropeanUnion, stating that there is statutory bar on any judge presiding overcases where judgments delivered by him are to be adjudicated upon inappeal.

42. The decisions and rules relating to the appeal against ChamberJudge are not at all relevant. There is no appeal within the SupremeCourt. It has totally different structure, and has its own correctivemechanism, need not be gainsaid. There is no room for reasonableapprehension to be entertained by the clientele of the respondent’scounsel. There is no question of recusal on pre-disposition as to the legal

issue or as to the relief to be granted, such an apprehension also isbaseless. The ultimate test is that it is for the Judge to decide and to findout whether he will be able to deliver impartial justice to cause withintegrity with whatever intellectual capacity at his command and he isnot prejudiced by any fact or law and is able to take an independentview. The answer would lie in examining whether without having anybias or without any pressure or not even irked by such prayer forrecusal, can he decide the case impartially. In case the answer is that hewill be able to deliver justice to the cause, he cannot and must not recusefrom any case as the duty assigned by the Constitution has to be performedas per the oath and there lies the larger public interest. He cannot shakethe faith that the common man reposes in the judiciary as it is the lasthope for them.43. Having surveyed the precedents cited at the Bar, and havingconsidered the arguments, it is my considered view that judge renderinga judgment on question of law would not be bar to her or hisparticipation if in larger Bench if that view is referred for re-consideration. The previous judgment cannot constitute bias, or pre-disposition - nor can it seem to be such, so as to raise reasonableapprehension of bias. Nor can expressions through judgment (basedon the outcome of arguments in an adversarial process) be “subjectmatter” bias on the merits of norm or legal principle, or provisions.The previous decisions and practice of this court have clearly shownthat there can be and is no bar as the respondents’ senior counsel argue.Accepting the plea of recusal would sound death knell to the independentsystem of justice delivery where litigants would dictate participation ofjudges of their liking in particular cases or causes.

44. Recusal is not to be forced by any litigant to choose Bench.It is for the Judge to decide to recuse. The embarrassment of hearingthe lengthy arguments for recusal should not be compelling reason torecuse. The law laid down in various decisions has compelled me not torecuse from the case and to perform the duty irrespective of theconsequences, as nothing should come in the way of dispensation ofjustice or discharge of duty as Judge and judicial decision-making.There is no room for prejudice or bias. Justice has to be pure, untainted,uninfluenced by any factor, and even decision for recusal cannot beinfluenced by outside forces. However, if I recuse, it will be derelictionof duty, injustice to the system, and to other Judges who are or to adorn

Athe Bench/es in the future. I have taken an informed decision afterconsidering the nitty-gritty of the points at issue, and very importantly,my conscience. In my opinion, I would be committing grave blunder byrecusal in the circumstances, on the grounds prayed for, and posteritywill not forgive me down the line for setting bad precedent. It is onlyfor the interest of the judiciary (which is supreme) and the system (whichBis nulli secundus) that has compelled me not to recuse.

O R R *

1.We have gone through the draft opinion circulated by ArunMishra J. An application for recusal is dealt with- and has been dealtCwith, in this case, by the concerned member of the Bench whoseparticipation is sought to be objected to.

2. The approach to be adopted by other members of the Bench tothis sensitive issue- in such cases, is best summarized in the view ofJustice Madan B. Lokur Supreme Court Advocates-on-Record-Association and Ors. vs. Union of India 2016 (5) 808 where it wasDstated as follows:

“In my respectful opinion, when an application is made forthe recusal of judge from hearing case, the application ismade to the concerned judge and not to the Bench as whole.Therefore, my learned brother Justice Khehar is absolutelyEcorrect in stating that the decision is entirely his, and Irespect his decision.

539. In detailed order pronounced in Court on its ownmotion v. State and Ors. reference was made to decision ofthe Supreme Court of the United States in Jewell Ridge CoalFCorporation v. Local No. 6167, United Mine Workers ofAmerica 325 US 897 (1945), wherein it was held that acomplaint as to the qualification of justice of the SupremeCourt to take part in the decision of cause cannot properlybe addressed to the Court as whole and it is theresponsibility of each justice to determine for himself theGpropriety of withdrawing from case.

540. This view was adverted to by Justice Rehnquist inHanrahan v. Hampton 446 US 1301 (1980) in the followingwords:

* Ed. Note : Order passed by Indira Banerjee, Vineet Saran, M.R. Shah,H and S. Ravindra Bhat, JJ.

‘Plaintiffs-Respondents and their counsel in these cases havemoved that I be recused from the proceedings in this case forthe reasons stated in their 14-page motion and their fiveappendices filed with the Clerk of this Court on April 3, 1980.The motion is opposed by the state-Defendant Petitioners inthe action. Since generally the Court as an institution leavessuch motions, even though they be addressed to it, to thedecision of the individual Justices to whom they refer, seeJewell Ridge Coal Corporation v. Mine Workers 325 U.S.897 (1945) (denial of petition for rehearing) (Jackson, J.,concurring), I shall treat the motion as addressed to meindividually. I have considered the motion, the Appendices,the response of the state Defendants, 28 U.S.C. 455 (1976ed. And Supp. II), and the current American Bar AssociationCode of Judicial Conduct, and the motion is accordinglydenied.’

541. The issue of recusal may be looked at slightly differentlyapart from the legal nuance. What would happen if, in Benchof five judges, an application is moved for the recusal ofJudge and after hearing the application Judge decidesto recuse from the case but the other four judges disagreeand express the opinion that there is no justifiable reason forJudge to recuse from the hearing? Can Judge becompelled to hear the case even though he/she is desirous ofrecusing from the hearing? It is to get over such difficultsituation that the application for recusal is actually to anindividual judge and not the Bench as whole.

542. As far as the view expressed by Justice Kurian Josephthat reasons should be given while deciding an applicationfor recusal, I would prefer not to join that decision. In thefirst place, giving or not giving reasons was not an issue be-fore us. That reasons are presently being given is differentmatter altogether. Secondly, the giving of reasons is fraughtwith some difficulties. For example, it is possible that in agiven case, learned judge of the High Court accepts anapplication for his/her recusal from case and one of theparties challenges that order in this Court. Upon hearing theparties, this Court comes to the conclusion that the reasons

given by the learned judge were frivolous and therefore theorder is incorrect and is then set aside. In such an event, canthis Court pass consequential order requiring the learnedjudge to hear the case even though he/she genuinely believesthat he/she should not hear the case.”

B3.In view of the above, we are of the opinion that the view ofMishra, J, to reject the application for recusal, is not matter that can becommented upon by us.

4. With respect to the observations by Mishra, J in his opinion,regarding the legal principles applicable, we are of the considered viewCthat there is no legal impediment or bar to his participation to hearing thereference on the merits in the present Bench.

5. We notice that his order has cited several previous instanceswhere judges who rendered decisions in smaller bench compositions,also participated in larger bench formations when the reasoning (in suchDprevious decisions) was doubted, and the issue referred to larger benches,for authoritative pronouncement.

6. For those and other reasons mentioned in the order of Mishra,J, we concur with his reasoning and conclusions that no legal principle ornorm bars his participation in the present Bench which is to hear theEreference; the precedents cited and the practice of the court, point tothe contrary, i.e. that the judge who decided previous cause, finally,can – and very often has- participated in the later, larger bench to whichsuch previous decision is referred for reconsideration.

7. For the above reasons, and having regard to the reasonsFcontained in Mishra, J’s order, outlining the rejection of the request forhis recusal, we are of the considered opinion that this Bench shouldproceed to hear and decide the reference made to it, on its merits.

Devika Gujral

Reference to be heard on merits by the Bench.