Navlakha Case Shows Why Judges Need to Give Reasons for Recusal

Nobody knows why five judges decided they couldn’t hear the case – and that is the problem.

Five judges of the Supreme Court have now recused themselves from hearing Gautam Navlakha’s plea to quash the FIR against him.

(Photo: Aroop Mishra/The Quint)

On 3 October, Justice Ravindra Bhat became the fifth judge to recuse himself from hearing Gautam Navlakha’s plea to quash the FIR against him in connection with the Bhima Koregaon case.

Navlakha had originally filed a petition to quash the FIR against him in the Bombay High Court, where it was rejected on 13 September, on the basis of information submitted belatedly in a sealed cover by additional public prosecutor Aruna Pai.

He filed an appeal against the decision in the Supreme Court but the matter has now been adjourned for three consecutive days as judges have withdrawn themselves from hearing the case.

Recusal by a judge is neither illegal nor unheard of but what is now beginning to raise eyebrows is why so many judges are recusing themselves from hearing this particular case without specifying any reasons, a concern more serious than you might think.

What’s the Navlakha Case About?

The Pune police claim that 65-year-old Navlakha was involved in inciting the violence at Bhima Koregaon on 1 January 2018, and has booked him under the provisions of the IPC and the Unlawful Activities (Prevention) Act, 1967. Navlakha was not named in the original FIRs filed regarding the incident and was only pulled into the case after the government started raiding and arresting other academics, activists, and lawyers, first in June 2018 and then in August 2018.

Navlakha had managed to secure interim protection from arrest from the Delhi High Court but after he was included in an FIR into the incident, he had to move the Bombay High Court to try and quash it, as the Pune police fall within its jurisdiction.

In June 2019, while the hearings in his quashing petition were underway, the court had observed that there was “nothing against him based on the documents submitted” to them. However, after reviewing the information in a sealed cover, which supposedly included material showing ‘deep involvement’ in a Maoist conspiracy, Justices Ranjit More and Bharati Dangre held there was a prima facie case against the professor, and hence, refused to quash the FIR.

As Navlakha’s lawyer Dr Yug Chaudhary indicated he was going to file an appeal in the Supreme Court, the high court agreed to extend Navlakha’s protection from arrest for three weeks. This has been extended by the Supreme Court till the next date of hearing – 15 October.

The Curious Case of the Repeated Recusals

The matter was listed before Chief Justice of India Ranjan Gogoi on Monday, 30 September. The CJI recused himself from hearing it. No reasons provided.

The matter was then listed before Justices NV Ramana, Subhas Reddy and BR Gavai on Tuesday, 1 October. They passed an order saying the case should be listed before a Bench “of which none of us... are members.” No reasons provided.

After the Gandhi Jayanti holiday, the matter was listed before Justices Arun Mishra, Vineet Saran and Ravindra Bhat. This time, the order said to list the matter before a Bench of which one of us (S Ravindra Bhat, J) is not a member.” No reasons provided, yet again.

The matter was then listed for Friday, 4 October, before the special Bench of Justices Arun Mishra and Deepak Gupta, which hears matters pertaining to environmental law. They will only be sitting after normal court matters are completed. The question is: Will either of these judges also now recuse themselves from hearing it?

Interestingly, Justice Deepak Gupta had recently given a speech in Ahmedabad where he extolled the right to dissent and slammed the use of the law of sedition to target those critical of the government.

Will that mean that he too will stand down and not agree to hear the case because he’s taken a stand on this kind of issue?

Luckily, he has not done so, and has not said anything about recusing himself, with the court set to hear the case next on 15 October. However, if he had recused himself from the case for that reason, it would have been unlikely that we would have been made privy to it.

Because it has become all-too-common for judges of the Supreme Court to recuse themselves from cases without specifying any reasons whatsoever.

The Navlakha Case is not the first where so many judges have recused themselves (though the number is still rather unusual). In 2017, six judges recused themselves from the Suraksha Foundation Case – more so than in this case – without explaining why.

Earlier this year, Suhrith Parthasarthy presciently warned us of this trend in The Hindu, in the context of the recusals by several judges from hearing the Nageswara Rao Case. Rao had been appointed as interim director of the CBI following the ‘CBI vs CBI’ shenanigans regarding former Director Alok Verma. Rao’s appointment was challenged in the Supreme Court.

First CJI Gogoi recused himself, then Justice Sikri and later Justice Ramana. No reasons were recorded in writing for these recusals either. Parthasarthy argued that specifying reasons in writing is important as gratuitous recusals pose a danger to the rule of law, and “when judges choose without a rational motive, without expressing their decisions in writing, they hurt the very idea of judicial rectitude.”

What’s fascinating is that the judges, in that case, had at least orally indicated reasons for why they couldn’t hear the case – CJI Gogoi and Justice Sikri as they were involved in the appointments to the post of CBI director, and Justice Ramana because he knew Nageswara Rao personally.

However, in the Navlakha Case, even oral reasons have not been provided for the judges’ decisions to recuse themselves. We can perhaps surmise that CJI Gogoi didn’t want to hear the matter as he has his hands full with the Ayodhya matter and it is believed that Justice Bhat knows Navlakha personally.

However, all this is speculation and therefore worthless, because the judges have not told us any of this. Of course, even within the realms of speculation, there do not appear to be any reasons for why the three judges who heard it on 1 October decided to subsequently recuse themselves.

Why Recusals Without Reasons are Dangerous

The problem is that there is no requirement in law for judges to specify reasons for their recusals. Even the Restatement of Judicial Values of Judicial Life in 1999, to which judges in India are supposed to adhere as guidelines, does not require them to specify reasons for recusal from a case.

A judge is expected to disqualify themselves if they can’t decide a case impartially according to these guidelines, but that’s pretty much it.

So, does that mean judges do not need to specify any reasons for why they do not want to hear a case?

Not necessarily.

Speculation over why judges are recusing themselves from a matter is dangerous, because this starts to create doubts in the minds of people over the independence and fairness of the judiciary. This isn’t about whether such apprehensions are actually accurate or not – the issue is whether such an apprehension is reasonable in the circumstances.

Even Justice Kurian Joseph, a former judge of the Supreme Court, took a similar stance in his concurring opinion in the NJAC Case of 2015.

His entire concurring opinion, in fact, was devoted to the question of whether or not judges should provide reasons for recusing themselves from a particular case. Justice Joseph tied this question to the principle that a judge has to perform their duties impartially – something which is not purely up to the judge’s own discretion. According to him,

“Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the impartiality of the Judge.”

A failure to provide reasons for a judge’s recusal could reasonably give rise to such doubts, as recusal is supposed to only take place in exceptional circumstances. The integrity of an institution like the Supreme Court relies on the trust people have in its judges to do the right thing at all times, and opacity does not sit well with trust.

Justice Joseph addressed this need for transparency in his judgment as well, saying:

“Transparency in procedure is one of the major factors constituting the integrity of the office of a Judge in conducting his duties and the functioning of the court. The litigants would always like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not recused to hear his case. Reasons are required to be indicated broadly.”

This is not to say that judges owe us 100-page orders detailing reasons about why they felt they did not want to hear a case. Justice Joseph used to specify his reasons for recusing himself in cases in a mere line of the judgment – for instance where he had already heard the matter as a high court judge. A single line is more than enough to explain and set any concerns at rest.

Justice Joseph also understood that sometimes, a detailed reason could have its own negative consequences. However, that doesn’t mean a reason shouldn’t be provided, as he posits,

“Of course, in case the disclosure of the reasons is likely to affect prejudicially any case or cause or interest of someone else, the Judge is free to state that on account of personal reasons which the Judge does not want to disclose, he has decided to recuse himself from hearing the case.”

In Navlakha’s case, we can already see the dangers we’ve discussed above start to manifest themselves, with all kinds of rumours buzzing around.

There is only one way to stop these kinds of rumours about the judiciary: transparency.

The judges who recused themselves in this case were under no obligation to tell us why they did what they did. The independence and impartiality of the institution cannot be questioned if they do not. But it would go a long way to ensuring the integrity of this most important institution, if the judges were to follow the advice of one of their own, in this case and cases to come.