Recusal is the destruction of the institution, says Chief Justice of India Ranjan Gogoi.

Chief Justice of India (CJI) Ranjan Gogoi on Thursday refused activist Harsh Mander’s request that he recuse himself from hearing a PIL petition highlighting the “sub-human” living conditions of detenues in Assam's detention centres.

Mr. Mander said his petition, which was solely intended to release those languishing in the detention centres for years, transformed itself, through oral observations made by the CJI during hearings, into a premise for “more people being detained and deported” in Assam.

“With great respect, My Lord, the PIL was filed on the basis of what I saw when I visited these detention centres as the Special Commissioner for the National Human Rights Commission. Your Lordship's oral observations have caused a great impact and led to more people being detained... Arrests have started and there is an atmosphere of fear,” Mr. Mander, who was permitted to speak “fearlessly and faithfully” by the CJI, said.

Mr. Mander argued the recusal plea in person after discharging his lawyer, Prashant Bhushan.

The Bench, dismissing the plea, directed the registry to strike out Mr. Mander as litigant to replace him with the Supreme Court Legal Services Authority. It brought Mr. Bhushan back into the case as an amicus curiae.

Don’t overstep, warns CJI

The CJI warned Mr. Mander not to “overstep.” In its order, the Bench said the plea had “enormous potential to damage the institution.” The CJI said recusal meant the “destruction of the institution.”

In his short submissions to the Bench, Mr. Mander referred to how the CJI had lashed out at the Assam government's proposal to conditionally release and monitor the declared foreigners languishing in the detention centres for over five years and declared that the court would not be a party to such a move, which is both illegal and violative of the Constitution. The CJI had also said the proposed measure reflected the government's failure to deport declared foreigners.

Mr. Mander said there must have been a “subconscious bias” in the mind of the CJI.

Chief Justice Gogoi hails from Assam.

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“What if we tell you you’ve been set up by Assam government,” the CJI shot out at Mr. Mander.

“I would simply say it’s completely untrue,” Mr. Mander said.

Chief Justice Gogoi said Mr. Mander should learn to trust his judges. “Oral observations from judges during a court debate does not mean a judge has already made up his mind. Will you go by written orders or by oral observations? You pick out some comments and say the Chief Justice of India, the Chief Justice of this country, has pre-judged a matter? See what damage you have done to this institution... You pick up something from the social media and you accuse the CJI of bias... What will happen to the institution?” the CJI addressed Mr. Mander.

Oral observations from a judge had “enormous impact” on the ground, Mr. Mander said.

The CJI said it was the judge who decided whether to recuse himself from a case and not the litigant.

Justice Deepak Gupta, on the Bench, addressed Mr. Mander that “when the court agrees with you, there is no bias. When the court disagrees, there is bias. That is not acceptable.”

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Justice Sanjeev Khanna explained to Mr. Mander that “when we ask questions, we want answers. It does not imply we have formed our beliefs.”

Chief Justice Gogoi said judges were amenable to accept their mistakes in reviews and curatives.

Solicitor General Tushar Mehta, for Assam, denied the State had anything to do with Mr. Mander's plea. He termed the submissions in the plea as “scandalous” and “nothing but forum-shopping.” He said, “You cannot get up like this and say you are acting in public interest and spit venom on anyone.”

The court posted the case for hearing on Thursday next.