Recusal is not to be forced: Justice Arun Mishra

New Delhi, Oct 24 (SocialNews.XYZ) A five-judge Constitution Bench headed by Justice Arun Mishra has said that "recusal is not to be forced by any litigant to choose a Bench stressing that "Justice Mishra will commit a grave blunder if he recuses in these circumstances.

"I have taken an informed decision after considering the nitty gritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent," Justice Arun Mishra said in an order delivered on Wednesday but was released on Thursday.

"It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse," Justice Mishra said, whose opinion was supported by other four judges on the Bench.

The Bench, which comprises Justices Indira Banerjee, Vineet Sharan, M. R. Shah and S. Ravindra Bhat, said that there is no legal impediment or bar to Justice Mishra's participation to hearing the reference on the merits in the present Bench.

"We notice that his order has cited several previous instances where judges who rendered decisions in smaller bench compositions, also participated in larger bench formations when the reasoning (in such previous decisions) was doubted, and the issue referred to larger benches, for authoritative pronouncement," the other four judges collectively said.

Justice Mishra said that it should be up to the judges to decide on recusal.

Emphasising that the embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse, he also said: "The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of justice or discharge of duty as a Judge and judicial decision making."

Justice Mishra stressed that there is no room for prejudice or bias and justice has to be pure, untainted, uninfluenced by any factor, and even decision for recusal cannot be influenced by outside forces.

"However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Benches in the future," Justice Mishra said.

The court was hearing a clutch of petitions challenging the validity of provisions related to compensation in the Land Acquisition Act.

Some farmers' associations and individuals had registered an objection over Justice Mishra hearing the matter, and sought his recusal citing judicial propriety. The court had earlier observed that attempts to make Justice Mishra recuse himself from the bench were a practice of "bench hunting which, if allowed, would destroy the institution".

Representing the petitioners, senior advocate Shyam Divan told the bench that it must look at the verdict that Justice Mishra authored in February last year, where he held that acquisition of the land by a government agency cannot be overturned, if there was delay by land owners in failing to accept compensation within five years, citing pending court cases.

In 2014, a court verdict had held that land acquisition can be overturned if there is a delay in accepting the compensation awarded for the acquisition. In March 2018, the top court had said a larger bench would look into the verdicts.

Divan told the bench that in his over 100-page verdict, Justice Mishra had opined that the view taken by another bench was bad under the law, and contended that a judge cannot sit over an appeal of his own past verdict.

Source: IANS