The Constitution bench of the Supreme Court striking down the 99th amendment of the Constitution by which the National Judicial Appointments Commission (NJAC) was constituted will be debated for a long time on its constitutional and political implications. Future discussions on the case cannot also avoid whether the possibility of bias in the decision making, which was specifically brought to the notice of the court, was properly and duly considered by it.
Official Bias
It does not need a seer to say if the NJAC was struck down, the power over judicial appointments would again become the in-house affair of the court, which any layman would tend to believe, the judges would like to preserve. This is legal bias. Bias need not be personal. Official or legal bias in itself disqualifies a judge. The Supreme Court itself [Gullapalli Nageswara Rao etc vs The State of Andhra Pradesh 1959 AIR 1376] has held that an authority who decides a dispute in which it has an official bias is a judge in its own cause. In the NJAC case, the issue of official bias was implicit particularly in the case of judges who would be in the NJAC if it were held valid, or, in the Collegium if it was held invalid. In fact, the issue of bias was raised in the open court against Justice Jagdish Singh Khehar, who incidentally wrote the main judgment striking down the NJAC. The counsel had asked Justice Khehar to recuse himself, but he refused. Given the high voltage constitutional dispute — namely what is the relative jurisdiction of the judiciary and the executive — the case could stand or fall on whether the judge rightly refused to recuse.
Recuse, said Nariman
Veteran senior counsel Fali S Nariman who argued against the NJAC and in favour of the Collegium, made a written submission requesting the presiding judge, Justice Khehar, to recuse himself because he was a member of the Collegium of the Supreme Court to appoint judges. The rationale of Nariman’s plea was that if the NJAC was declared valid, the Collegium would not revive and Justice Khehar would lose an important position of constitutional authority. This is a specific case of what is certainly legal, but also possibly personal, bias, which, Nariman pleaded, should be avoided to make the process look impartial and judicial. Justice Khehar finally overruled Nariman’s objection and decided the case. The dialogue in Justice Khehar’s “recusal order” will be debated for a long time on the validity of the logic it expounds.
Nariman made three profound points in writing: one, Justice Khehar’s position on the bench is not consistent with (and apparently conflicts with) his membership of the Collegium; two, it is likely to be seen as such, always bearing in mind that if NJAC is upheld, Justice Khehar would no longer be part of the Collegium, which exercises significant constitutional power; and three, it is inappropriate for Justice Khehar to continue to sit on a Bench that adjudicates whether the Collegium system should continue or not.
Nariman concluded that the impression in the people’s mind would be that it is inappropriate if not unfair if a sitting member of the Collegium sits in judgment over a scheme that seeks to replace the Collegium itself. The most critical point is the impression in the people’s mind. Before seeing how Justice Khehar rejected Nariman’s plea, it is important to note why Justice Anil Dave who was heading the bench earlier recused himself.
Justice Dave, by virtue of his seniority, has been both a member of the Collegium and also would have been a judicial member of the NJAC if it were upheld. Therefore his position would not be affected by the decision in the case. Yet he recused himself for the reason that he would be seen to be a judge in his own cause.
Khehar says ‘no’
While Justice Dave recused himself on his own, Justice Khehar did not, even after being asked on specific grounds by one of the most respected senior counsel in the country. After Nariman pleaded that Justice Khehar should recuse himself, the other judges unanimously ruled that he need not. This itself was a wrong procedure. A judge recuses himself or refuses to when a plea is made. No one else can decide that issue. Recusal involves two tests. One is internal, which “requires that the judge determine whether he harbours an actual disqualifying bias and prejudice”. Next comes the outward test. As the “inward test” is obviously difficult of prove, the counsel seeking recusal is well advised to stress the “outward test”, namely, whether in light of the circumstances, the judge’s impartiality might reasonably be questioned. If the answer is positive, the judge must recuse. [Judicial Disqualification Chapter 25 Para 25.1 University of Suffolk Boston US] But significantly, Justice Khehar does not deny that in the event of the NJAC being held valid, the Collegium would go and he would no more have an important Constitutional function. Justice Khehar states even after the other judges said he need not recuse, he was still undecided and was toying with recusal because a prayer to that effect had been made in open court. Finally he decided not to recuse and categorically said he wished to record that the decision was his and his “alone” and not because of his colleagues’ persuasion or exhortation.
However, Justice Khehar does not at all answer the issue of conflict of interest or bias alleged by Nariman. On the contrary, he counter-questions why Nariman did not ask Justice Dave to recuse himself before Justice Dave actually recused! He says that if the reason for seeking his recusal is that he was part of the Collegium, that should have applied to Justice Dave as well. Justice Khehar asks why the objection against him was not raised against Justice Dave. He also states that when confronted, Nariman “vociferously contested” that he had asked Justice Dave to recuse himself.
Justice Khehar’s question is surprising for two reasons: one, he himself conceded that Justice Dave would not be affected by the outcome of the case either way — he would be in the Collegium if the challenge to NJAC succeeded and he would in NJAC if the challenge failed and so would not be affected by whichever way the case goes. Second, whether Nariman asked Justice Dave to recuse or not is theoretical, as Justice Dave recused himself without being asked. On the other hand, Justice Khehar refused to recuse on the ground that when Nariman did not and would not ask for Dave’s recusal, his asking for Justice Khehar’s recusal was not justified. In the process, nowhere does Justice Khehar deny that there could be a perception of bias if he hears and decides the case.
Why not others,asks Justice Khehar
The striking argument of Justice Khehar against Nariman’s plea is not that there could be no perception of bias in his case, but other judges hearing the case could be perceived as equally biased. Justice Khehar says that being a member of the Collegium, it is likely that he is also likely to become a member of the NJAC if the challenge against it failed — thus putting himself on par with Justice Dave. Here he failed to note that Justice Dave has recused himself. For him Nariman not asking for Justice Dave’s recusal seems to be more relevant than the actual recusal of Justice Dave without being asked.
Justice Khehar went on to say that in future, the other judges on the bench too are likely to be either in the Collegium if it survives the adjudication or part of the NJAC if it were held valid. “In such eventuality”, says Justice Khehar, “the averment of conflict of interest, ought to have been raised not only against me, but also against my three colleagues.” The logic is the other judges are likely to be as biased or unbiased as Justice Khehar himself. But, if such a plea had been raised against others, Justice Khehar would have no option but to recuse. If he were disqualified he would have to recuse. That others are also disqualified is not a ground for him not to recuse.
Finally, Justice Khehar decided not to recuse himself because the prayer for his recusal was “not well founded”. He added that a judge may recuse on his own, but recusal at the instance of a litigating party, unless justified, must never to be acceded. Justice Khehar rightly said that the recusal plea must be justified. The only justification law requires is what Nariman told Justice Khehar, namely, that his position in the bench is likely to be seen as conflicting with that in the Collegium. His answer to Nariman is that the position for others is also the same and because Nariman has not asked Justice Dave to recuse he is disqualified to ask Justice Khehar to recuse — notwithstanding that Justice Dave has already recused. And finally Justice Khehar has delivered precisely the judgment which Nariman wanted and canvassed — namely that Collegium should continue. And that is precisely what the veteran counsel feared would be seen as a sitting member of the Collegium sitting in judgment over NJAC that seeks to replace it. The court may need to decide in future whether Justice Khehar’s decision not to recuse himself because he is as qualified or disqualified as other judges on the bench are, is correct or not. If, as Nariman had contemplated, the present judgment is contested in a Curative Petition against it, this issue may be a principal ground for challenging Justice Khehar’s judgment itself.
(The author is a commentator on political, economic and cultural affairs)