Judges’ bias

Published: 00:00, Nov 04,2019


— Live Law

‘No litigant can choose who should be on the bench, said Justice Aurn Mishra of the Supreme Court of India. ‘He cannot say that a judge who might have decided a case on a particular issue, which may go against his interest, should not hear his case as part of a larger bench’, writes AG Noorani

RECENTLY, the Supreme Court of India heard an argument on the recusal of a judge, from the bench of which he was a member, on the ground that there was a reasonable apprehension of bias on his part.

A five-judge constitution bench hearing a case on the interpretation of a provision of the Land Acquisition Act refused the recusal of Justice Arun Mishra. The petitioners had sought his recusal on the ground that he had delivered in 2008 a verdict, which had to be reconsidered.

The law and practice on a judge’s recusal merits separate discussion. What Justice Arun Mishra said in the court on October 24 has far-reaching implications. He said: ‘No litigant can choose who should be on the bench. He cannot say that a judge who might have decided a case on a particular issue, which may go against his interest, should not hear his case as part of a larger bench.’

But the parties made no such sweeping claim at all. This proposition is altogether different from the one urged by the parties which sought his recusal. The sole issue was a reasonable apprehension in the minds of the litigant and his advocate that, since the judge had expressed emphatically his views on a question of law in a previous case, there was apprehension that he would not approach the latter case with an open mind. This was not an accusation of lack of integrity. It was simply a reminder of a very natural infirmity of the human mind.

If anything, Justice Mishra’s remarks lend support to the objection. For, he said that a judge cannot be suspected of bias for performing his sworn duty. ‘Previous judgement cannot constitute bias or predisposition or raise reasonable apprehension of bias.’

He said, ‘The ultimate test is for the judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity and with whatever intellectual capacity at his command… In case the answer is that he will be able to deliver justice to the cause, he cannot and must not recuse from any case as the duty assigned by the constitution has to be performed as per the oath and there lies the larger public interest.’

The truth, on the other hand, is that public confidence in the judiciary will be shaken if, faced with a prima facie case of his bias, the judge insists on deciding the case. Worse, Justice Mishra’s remarks suggest that a judge can never be biased and, more, he can be judge in his own cause; virtually a claim to judicial infallibility.

Shortly before the learned judge expounded his doctrine, The New York Times had a lengthy editorial titled ‘Watch out: Supreme Court in session’. It referred to cases that were to come up for hearing and judgement in the ensuing session in which ‘the make-up of the Supreme Court matters so much.’ It is well-recognised that the US supreme court’s history has been divided between conservatives and liberals with a liberal or two holding the balance.

One of the court’s great judges Benjamin N Cardozo delivered a lecture in 1921 at Yale University, published amongst others in book form under the title The Nature of the Judicial Process. They are considered a classic on the subject.

He said: ‘I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgements. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge….’

He said, ‘I do not doubt the grandeur of the conception which lifts them [judges] into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. Nonetheless, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the best of men do not turn aside in their course and pass the judges by.’

President Theodore Roosevelt said in his message to the US Congress in December 1908: ‘The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the 20th century we shall owe most to these judges who hold to a 20th-century economic and social philosophy.’ Surely, this is not unique to the US.

India has not been immune to judicial bias or what came to be called in the heyday of Indira Gandhi’s ‘committed’ judges. The tribe is not dead.


Dawn.com, November 2. AG Noorani is an author and a lawyer.

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