Monday, October 19, 2009

The recusal controversy & the facts

I invite readers' attention to Rajeev Dhavan's article in Mail Today on when and why Judges should recuse themselves from hearing a matter. The news peg for the article is certainly Supreme Court Justice S.H.Kapadia's admission while hearing a matter concerning Sterlite that he held shares in that company, but continued to hear the matter when the counsel expressed no reservations about his hearing it.

Dhavan claims he cast no aspersions on the Judge. But he is also categorical that it is not fair for a judge to ask lawyers whether he should recuse himself from a case. "No lawyer can truthfully answer such a question either on his own behalf or on behalf of a client. It is a question that the judge himself can answer. To pass this on for advice from a lawyer in the case is self- defeating", he says. He adds: "If a judge has shares in a company, and a case comes before him which affects the company’s prospects and standing, the judge should refuse to hear the matter. This should be a case of automatic recusal."

Dhavan's conclusion that this article is not about Justice Kapadia or Vedanta case - after ruling out the application of doctrine of necessity to Justice Kapadia - is indeed surprising, if not perplexing. My enquiries reveal the following:

* Justice Kapadia made this admission of his holding shares in Sterlite while being part of the Forest Bench on October 26, 2007 when Sterlite was not yet a party. It was only in 2008, the Vedanta project in Orissa was handed over to Sterlite in this case.
* Since it was a PIL matter, there was no adversarial party in this matter; hence, no question of that party expressing reservations about the Judge's disclosure.
* The tribals, the aggrieved parties in this case, and who were against the refinery project, were not heard by Justice Kapadia, because they were parties to the Central Empowered Committee, which also recommended against the Centre's approval to the project. Read this TOI story by Manoj Mitta recently.
*The Vedanta case was being heard from May 3, 2005 and according to some observers, Justice Kapadia disclosed his interest on October 26, 2007 rather inadvertently.
*The controversy over conflict of interests would not have become public, but for the interview Mr.Prashant Bhushan gave to Tehelka. According to reports, the Supreme Court has given permission to Mr.Harish Salve to seek AG's consent to issue contempt of court notice to Mr.Prashant Bhushan for this interview, if there is no apology forthcoming from Mr.Prashant Bhushan and Tehelka. An apology from them appears unlikely. Therefore, we are sure to hear more on this controversy in the coming weeks.

Relevant links:
*Shamnad Basheer's post on Justice Katju's recusal
*Justice Dalveer Bhandari in the Punjab Civil Service case.
*Justice Sinha's judgment in the Punjab civil services case
*Harish Salve, retainer for Vedanta, admits to have continued with the matter (as amicus)despite having shares in Sterlite, after Forest Bench told him there was no problem. Once Mr.Salve became the retainer for Vedanta after having served as the amicus,the Court appointed the Junior amicus, Mr.Uday Lalit as the amicus in the case.
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