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Bombay High Court: Trend of seeking recusal of judges should be nipped in the bud[Read Order]

Team SoOLEGAL 25 Sep 2017 3:17pm

Bombay High Court: Trend of seeking recusal of judges should be nipped in the bud[Read Order]

The Bombay High Court has observed that the trend of seeking recusal of judges is increasing and it has to deprecated and discouraged and nipped in the bud.

The observations were made in an order passed on September 6 by a Bench of Justices PD Naik and SC Dharmadhikari in an Income Tax Appeal, in response to the objection raised by the respondent to Justice Dharmadhikari hearing the matter.

The Court began its order by recording the objection of the respondent, who appeared in-person.

“…the respondent – party-in-person raised a specific objection.  That objection is as follows. 2 He submits that he has no faith in the impartiality or integrity of one of us (S.C. Dharmadhikari, J.) and he has specifically requested the Hon’ble The Chief Justice to assign this matter to a Bench, other than the one presided over by Justice S.C. Dharmadhikari.  He would, therefore, submit that this written objection being on record, at least one of us should recuse himself from hearing the cases any further.”

The Court then placed reliance on the Supreme Court judgment in Subrata Roy Sahara v. Union of India (AIR 2914 SC 3241), wherein the Court had come down heavily on litigants and lawyers for attempt to intimidate the Bench to get them to recuse from the case. It noted,

“This is a new trend emerging when Judges are challenged in the manner that has been repeatedly noted by the Hon’ble Supreme Court.  A mere inconvenient question or a query and which is raised during the course of appreciation and appraisal of the legal and factual issues in a matter at hand and particularly in the nature of appeal should not result in a litigant being taken aback or, if taken aback, responding in this manner.”

The Court went on to observe that such tactics are adopted by litigants to delay the proceedings or to get a favourable verdict. It held that such trend should be nipped in the bud.

“Sometimes we must remind ourselves that such ploys or tactics are adopted by litigants so as to delay the obvious.  If the delay is to their benefit, then, they can go to any extent so as not to invite an adverse order or anything contrary to their interest.  It is that perception which is entertained by the litigants and that is how for a favourable verdict, they resort to every tactic in the book or even impermissible in law or unknown to fairness, equity and justice….

The trend, which is now increasing, of Judges being called upon to recuse themselves, therefore, has to be deprecated and discouraged.  It must be nipped in the bud…”

Regarding the instant case, the Court noted that the respondent had a history of making such requests.

“We have noted from the record that this is not the first time the respondent has made such a request.  The respondent was also a party litigant before the Income Tax Appellate Tribunal at Mumbai.  

With great pain and anguish the Tribunal has held that the respondent made an application and in which allegations were made of lack of faith and trust even in Members of the Tribunal. Some of them had to recuse themselves from the proceedings.  The proceedings, therefore, dragged endlessly.” 

The Bench also held that there was no sound basis for seeking recusal of Justice Dharmadhikari and no good reason was put forward by the respondent to buttress his apprehension of bias.

“…respondent party-in-person has not stated anything by which one can conclude that there is a reasonable apprehension of bias and prejudice.  This party-in person has had no occasion in the past to argue any of the cases in person before one of us (S.C. Dharmadhikari, J.).  Yet, he makes a request and as above.  This has, therefore, taken us by surprise.  The allegations of bias and apprehension of injustice having no basis, but vague and general statements being made in the application…”

The Court made it clear that assignment of judicial work is the prerogative of the Chief Justice and the litigant cannot dictate the court as to who should hear a case.

“…we do not think that the litigant who is appearing in person before us can be given an opportunity to dictate to the Court and to any judicial officer as to who should be the Judge / presiding Judge to whom his cases should be assigned and who should preside over any Division Bench. 

It is the prerogative of the Hon’ble the Chief Justice and it is he/she who decides how the judicial work should be assigned. Once the Chief Justice assigns judicial work to a Bench, then, it is not unless there is a power exercised otherwise, open to a litigant to call upon the Judges to recuse themselves from judicial work in this manner.”

The Court, therefore, proceeded to decline the request for recusal.

Read the order here:

Justices PD Naik   Bombay High Court   Justice Dharmadhikari  

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