NEW DELHI: The Supreme Court on Friday sought a response from the Gujarat government and BJP MLA Purnesh Modi in a plea preferred by Congress leader Rahul Gandhi. The Congress leader had, in his plea, contested the Gujarat High Court’s refusal to stay his conviction in a criminal defamation case over his alleged remarks on the ‘Modi’ surname.
A bench of Justices BR Gavai and PK Mishra, however, refused to consider his request for interim suspension of the conviction, saying that it would have to hear the other side first. “At this stage, without hearing the other side, how can we give (relief)?” Justice Gavai remarked.
Underlining the limited question involved in the plea, which was regarding the stay of conviction, the bench posted the hearing for August 4. Gandhi had challenged in Supreme Court the Gujarat High Court’s July 7 verdict, passed by a bench of Justice Hemant M Prachchhak. Upholding the Surat session court’s verdict, Justice Prachchhak had said that the two-year jail term granted to the Congress leader was “just, proper and legal.”
As soon as the hearing had begun, Justice Gavai, the presiding judge of the bench at the outset, expressed his difficulty to hear the matter and told the counsels about the political association of his father RS Gavai and his brother with the Congress party.
Asking senior counsels AM Singhvi (appearing for Gandhi) and Mahesh Jethmalani (representing Purnesh Modi) to take a call if they wanted him to hear the matter or not, Justice Gavai said, “I must express some difficulty. My father was associated with the Congress. Though not a member, he was closely associated. Mr Singhvi, you have been with Congress for more than 40 years. My brother is still in politics and he is in Congress. Please take a call if you want me to hear this.”
Both the advocates asked the judge to not recuse. “We have no objection,” Jethmalani said. Singhvi said it was a sign of the times that “these kinds of things should be raked up”. In an attempt to convince the bench to grant interim relief, Singhvi said that 111 days have already passed since Gandhi’s disqualification from the House. He said that Gandhi, due to his disqualification, was unable to attend one Parliament session and would not be able to attend the ongoing session too.
Referring to the provisions of The Representation of People Act, 1951, which mandates the Election Commission to fill the casual vacancies by way of byelections within six months of the date of the vacancy, Singhvi said that elections to the Wayanad constituency will be notified any time.
On Jethmalani’s objection, Singhvi said, “Your client needs to be bothered only about the conviction part and not the disqualification part.” In the end, Justice Gavai said, “I am only doing my duty. I have to disclose this, so there is no problem later on.” On a light note, he also told the counsels that his father was a good friend of both their fathers.
Why do judges recuse?
The practice of the judges recusing themselves from hearing a case stems from a principle that says “Nobody can be a judge in his own case.” A judge can withdraw from considering a case when there is a conflict of interest in order to prevent the creation of a perception of bias while deciding a case. The conflict of interest can be in the form of “having prior or personal association with a party involved in the case” or “representing one of the parties in the past”
Rules for recusal
Although there are no formal rules regarding recusals, the Supreme Court in Ranjit Thakur v Union of India (1987) case had said that the test of the likelihood of bias is the reasonableness of apprehension in the mind of the aggrieved party
Instances of SC Judges recusing
Five judges of the Supreme Court had recused themselves from a case involving human rights activist Gautam Navlakha. Ex-CJI Ranjan Gogoi was the first person to recuse. A day later, Justices N V Ramana, R Subhash Reddy and B R Gavai followed suit. Justice SR Bhat was the fifth judge to recuse
Justices DY Chandrachud and AS Bopanna had recused from considering the Krishna river water dispute case
Justice Dipankar Datta recused from considering CBI’s plea challenging the order of the NIA court in
Jammu on issuing production warrants to jail authorities in Yasin Malik case.