Harsh Mander Removed From Deportation Case, CJI Refuses to Recuse

CJI dismissed activist Harsh Mander’s application to recuse himself from case on treatment of illegal immigrants.

CJI Gogoi had made connections between this case and the main NRC case before the Supreme Court.

(Photo: IANS) 

After a fractious hearing in the Assam deportation case on Thursday, 2 May, Chief Justice of India Ranjan Gogoi refused to remove himself from the matter, and instead struck off the petitioner in the case, social activist Harsh Mander.

The case will continue in court, but Mander will no longer be involved. Senior advocate Prashant Bhushan has been appointed as an amicus curiae to assist the court with the issues Mander had raised.

Mander had filed an application asking the CJI to recuse himself from the case (regarding the treatment of illegal immigrants in detention centres in Assam) on Thursday itself, and the judges allowed him to present it even though he had not properly filed it with the registry.

Mander’s Grounds to Ask the CJI to Recuse Himself

In the recusal application, Mander expressed concerns over the direction the case, which he had originally filed seeking humane treatment of the detainees, was taking. He said that his original petition...

“...had been turned on its head by the Hon’ble Chief Justice who, by his remarks and observations in a series of hearings, appears to use the same petition instead to seek detention of tens of thousands of more persons in these detention centres, and the repatriation of deemed foreigners by the State of Assam without ensuring that the principle of Rule of Law and the international law principle of non-refoulement are adhered to.”

The detainees in the detention centres are mostly immigrants who have been convicted of cruising into India illegally by the Foreigner's Tribunals in the state, many of whom have been lodged in the detention centres for extremely long periods of time.

Mander argued in his application that the conduct of the court thus far “has raised a serious apprehension in the mind of the Applicant that there is the possibility of bias affecting the outcome of the Petition.”

CJI Gogoi told Mander to speak freely and explain why the petitioner wanted the judge to recuse himself. Mander essentially repeated the same argument, that he couldn’t understand how a case on inhumane treatment of immigrants had become one about mass deportation.

What Did the Court Say?

The CJI took strong exception to Mander’s arguments. He began by asking

“What if we say that you have been set up by the government of Assam to file this application seeking recusal of the Chief Justice of India. How will you defend yourself?”

The CJI then pointed out that the comments and observations made by him during the previous hearings had been part of the debate, but this should not be considered the opinion of the judges. “The opinion of the judge is reflected in the court’s order, he said.

CJI Gogoi also pointed out that the requests made by Mander in his original petition were still being heard by the court, and that the judicial orders passed till then had expressly mentioned this. To raise doubts like this about the way a case was proceedings, in the Chief Justice’s opinion, could cause severe damage to the institution of the courts.

“You have to trust your judges,” he warned, pointing out that the decision on whether or not to recuse was one for a judge to bring up, not a party to the case. “You’re a litigant in this case, do not overstep, Mr Mander.”

Justice Sanjiv Khanna also took Mander through the text of the orders passed in the case to show that they were asking questions that were related to the main prayer by Mander, but were still also asking the government for responses on the treatment of detainees. The third judge on the bench, Justice Deepak Gupta, also expressed disapproval.

The CJI indicated that what Mander’s application could be considered contempt of court, but once again pointed out that this was something in which the Chief Secretary of Assam must also be involved.

Solicitor General Tushar Mehta, who represents the state government and the central government, insisted both were vehemently opposed to the application. “It is scandalous and contemptuous,” he said, citing the sections of the application where Mander has alleged bias.

THE ORDER

In the order dictated by CJI Gogoi, he reiterated that it is for judges to decide whether they are unable to hear a particular case – recusal is entirely within their discretion. The order notes that the grounds cited by Mander for recusal could cause severe damage to the institution of the courts.

The judges decided against launching contempt proceedings against Mander, but did decide to remove him from the case. Prashant Bhushan, who had ironically been discharged by Mander because he had advised against filing the recusal application, was then asked by the court to assist it on the issues raised in Mander’s petition.

What Happened in the Previous Hearings

Since the hearings in the case began in January, CJI Gogoi has drawn connections between this case and the main National Register of Citizens (NRC) case before the Supreme Court, asking how the final draft of the NRC in July will be reconciled with the illegal immigrants in the detention centres.

In the hearings, the CJI has asked for status reports from the Chief Secretary of Assam and chastised the government of Assam for failing to deport immigrants even after they'd served their sentences. A government proposal to allow those who'd been detained for five years to be released on conditions was also rejected by him at a previous hearing.

On 10 April, The Economic Times reported that the Assam government had told the Supreme Court that it was considering filing FIRs and attaching the immovable properties of foreigners after the court demanded to know what it had done in the last five years to trace and deport foreigners from the state.