Justifying his non-recusal from a Constitution Bench hearing pleas challenging provisions of the Land Acquisition Act, Supreme Court Judge Arun Mishra has said accepting the plea for recusal will "sound a death knell" for the "independent system of justice delivery".
Various farmers associations and individuals have sought recusal of Justice Mishra from hearing the pleas on the ground that he has already delivered a verdict on the issue in February last year and there is reasonable apprehension that the judge may have some bias in dealing with the matter by a larger bench.
Justice Mishra, who is part of the five-judge bench also comprising justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat, penned down the lead order and said if he accepts the request of recusal, then "posterity will not forgive me down the line for setting a bad precedent".
The other four judges concurred with Mishra's findings in a separate order.
The order was pronounced by the bench on Wednesday but was uploaded on the apex court's website on Thursday.
Justifying his stand of non-recusal, Justice Mishra in his 56-page verdict said, "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. It is only for the interest of the judiciary (which is supreme) and the system that has compelled me not to recuse".
He said in his considered view, a judge rendering a judgment on a question of law would not be a bar to his participation in a larger Bench, if that view is referred for reconsideration.
"The previous judgment cannot constitute bias, or a pre-disposition nor can it seem to be such, so as to raise a reasonable apprehension of bias," he said.
Justice Mishra said "accepting the plea of recusal would sound a death knell to the independent system of justice delivery where litigants would dictate participation of judges of their liking in particular cases or causes.
Recusal is not to be forced by any litigant and it is for the Judge to decide whether to recuse or not, he 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. There is no room for prejudice or bias.
"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 Bench(es) in the future," Mishra said.
He said if the litigants are given the right to seek recusal of a judge on the ground that the said judge in a smaller bench, had expressed his mind then "this would open the flood gates of forum shopping".
"Recusal upon an imagined apprehension of legal pre-disposition would, in reality amount to acceding to the request that a judge having a particular view and leanings in favour of the view which suits a particular litigant, should man the bench.
"It would not only be allowing bench hunting but would also be against the judicial discipline and will erode the confidence of the common man for which the judicial system survives," Mishra said.
He said the entire judicial system is based on sound constitutional principles and the roster making power is bestowed on the Chief Justice of India, so that litigants are not able to choose the judges before whom they have to argue a matter.
"He is a constitutional functionary who has been enjoined with this task at the highest pedestal to exercise the power of roster making. He is the repository of faith. Once he has exercised his power, it is not for the judges to choose," he said.
Justice Mishra said if requests for recusal are acceded to for the asking, litigants will be unscrupulously taking over the roster making powers of the Chief Justice and that would tantamount to interference with the judicial system, by the mighty to have a particular bench by employing several means and putting all kinds of pressures from all angles all around.
It is the test of the ability of the judicial system to withstand such onslaught made from every nook and corner. Any recusal in the circumstances is ruled out, such prayer strengthens the stern determination not to succumb to any such pressure and not to recuse on the ground on which recusal sought because for any reason, such a prayer is permitted, even once, it would tantamount to cowardice and give room to big and mighty to destroy the very judicial system," he said.
Moreover, recusal in such unjustified circumstances, would become the norm, Justice Mishra said.