He heads a Constitution Bench meant to re-examine his own judgment; maligning a judge in social media is akin to maligning the Supreme Court, he says.

Supreme Court Judge Justice Arun Mishra on Tuesday stood firm against a request by parties to recuse himself from heading a Constitution Bench meant to re-examine his own judgment.

On February 8 last year, Justice Mishra authored a majority judgment that conflicted with a 2014 verdict of the Court on grant of compensation under Section 24 of the land acquisition law of 2013.

The 2014 judgment was, till Justice Mishra's judgment, considered the settled law on land acquisition compensation. Justice Mishra's judgment opened a Pandora's box. Days later, on February 21 2018, a three-judge Bench led by Justice (now retired) Madan Lokur virtually stayed the operation of the February 8 verdict while questioning its propriety and termed it a tinkering of judicial discipline. The conflict raised by the judgments of 2014 and February 8, 2018 of Justice Mishra was referred to a Constitution Bench and the case was first taken up by a Constitution Bench led by then Chief Justice of India (CJI) Dipak Misra. And then, after a pause, it was listed before a combination of another five judges led by CJI Ranjan Gogoi. This Bench too failed to hear the case. Finally, last week, Chief Justice Gogoi chose to set up a third Constitution Bench under Justice Mishra.

The fact that Justice Mishra was chosen to lead the Bench created a flutter in social media and several articles were written questioning the propriety of it.

Seeking his recusal, the parties said a judge cannot sit in appeal against his own judgment.

Senior advocate Shyam Divan, in the course of his submissions, referred to the phrase “no man can be a judge in his own cause”.

Another lawyer said: “justice should be seen to be done”.

Justice Mishra stoically disagreed with their pleas to recuse. He returned the salvo aimed at him by accusing the petitioners of leading a concerted campaign on social media to “malign” him. He said maligning a judge in social media was akin to maligning the Supreme Court.

Solicitor General Tushar Mehta said “a pattern has emerged whereby articles and social media posts appear a couple of days before an important hearing is due in the Supreme Court in a bid to influence opinion outside the court about the issue at stake... Your Lordships should consider this”.

Other judges on the five-judge Bench, Justices M.R. Shah and Vineet Saran, agreed with Justice Mishra that the social media “comments” made on the latter should be taken up as a legal issue and decided on by the Bench.

Justice Mishra said the Constitution Bench was meant to decide a question of law on the interpretation of Section 24 and not concerned with any past judgments in individual cases on the issue.

The judge said he answered only to God, his sense of integrity and his own conscience.

“We may be criticised, we may not be heroes, we may be blemished persons, but the test is that of conscience. If I am satisfied that I can hear this case with integrity, I will hear it,” he declared.

Every judge on the Constitution Bench, at one point or the other, had decided on cases pertaining to Section 24. “Should they all recuse or is recusal only for Justice Arun Mishra?” he asked Mr. Divan.

“Left to me, I would have taken a decision on the issue, but you maligned a judge and the institution on social media... if a judge is going to be maligned like this, then what is left of the institution? There is nothing personal about any of our judgments,” he observed.

“Intellectual bias”

Justice Bhat said bias in this case would be an “intellectual bias” and not pecuniary or of any other kind.

The Bench said the plea for recusal should never have been made by the parties; but having done so, the court would hear it to pass a judicial order.

In his submissions, Mr. Divan said he could not speak for everyone on social media. “But our request for recusal was meant to strengthen the Supreme Court and not malign. Our stand is buttressed by local and global law. I don't think we have to be affected by what is said in the social media chatter. We should go on with our work according to our procedure and principles," he addressed the Bench.

“You are not sitting in a reference of question of law, but in appeal of two conflicting judgments - 2014 and 2018... You are in effect exercising the appellate jurisdiction. The impartial institution test should be applied here,” Mr. Divan replied to Justice Mishra's stand that the Constitution Bench was only deciding a position of law.

Bias may be defined as a predetermination to decide a case. It was a condition of mind of a judge which does not enable him to decide a particular case without predisposition, he argued.

In the 2014 judgment by a Bench led by Justice (retired) R.M. Lodha in the Pune Municipal Corporation case, the apex court held that land acquisition would be void under Section 24 if the compensation amount was not deposited in the landowner's bank account or with the court in five years. The judgment said payment of money in the government treasury would not be construed as payment to the landowner.

The February 2018 judgment by Justice Mishra's Bench, however, held that a landowner refusal to accept compensation in five years would not make the acquisition void. There was only a requirement to tender the compensation to fulfil the obligation of payment, it said.