Whether lawyers can ask Judge to recuse from particular case?
Again, at this stage, Shri V.V. Bhangde, the learned counsel
for the appellant/defendant No.2, submits that the office be given
direction not to list the matters in which he is appearing for any of the
parties before this Court. In other words, he submits that I should
recuse from taking up the matters wherein Shri V.V. Bhangde is
appearing for any of the parties. The submission shocks my
conscience, particularly when it suddenly came from a regular
practitioner from this Court, who was being looked at as an
experienced and responsible officer of the Court. The entire
arguments in this matter went on smoothly, patiently and with
interest. After conclusion of the arguments, both the learned counsels
were asked as to whether they intend to make any additional
submissions, and thereafter the dictation commenced as per the usual
practice. I need not delve upon any further and I refrain from making
any comments against Shri V.V. Bhangde. However, the increasing
trend need to be commented upon; so as to caution the lawyers and
the litigants about the consequences of it, which can be avoided.
15. A lawyer has his own choice of appearing before the Court
presided over by a particular Judge to conduct the matter. If his
matter is listed before the Court where he does not want to appear, he
is at liberty *to return such matter and/or fees to his client and can
ask him to engage some other lawyer or he may refuse to accept the
matter if he has not already filed his vakalatnama. A Judge may also
recuse himself from taking up the matters of the lawyers with whom
he is closely related or where his conscious does not permit him to
take up the matters of some lawyers. In these situations, there may
not be any problem either with a Judge or a lawyer, but where the
Court passed an order against a particular lawyer not to appear in his
Court, it takes a colour of penalty or punishment to such a lawyer,
which may result in taking some disciplinary action against him by the
Bar Council of India or of State, which issued him a Sanad of Practice.
Such a stage by a Court may be construed of blacklisting of a lawyer.
Seldom, such event occurs, and the Courts also normally avoid it.
16. A tendency has started growing amongst lawyers to dictate a
Judge to recuse from taking up his matters when the decision goes
against his client or his wavelength does not match with the Judge or
he does not find comfort in conducting the matter or for some such
reasons. This is an insult personally to a Judge. Such reactions are
normally experienced when the lawyers take heavy fees from their
clients with an assurance to bring the result of the cases in their favour
or to impress upon the clients sitting in the court room during the
course of hearing, the boldness which he possesses to browbeat the
Court. If a lawyer exercises his choice of not conducting the matter,
he loses his client and fees, which he does not want to do. If a Judge
accedes to such demand of a lawyer for recusal, the effect is
threefold (i) the confidence of a lawyer to browbeat the Court is
boosted, (ii) a lawyer gets rid of the Court where he finds discomfort
in conducting the matter, and (iii) it creates an additional source of
income for him, from the other lawyers and the litigants, who do not
want their matters listed or dealt with by such a Judge. This promotes
the practice of benchhunting. No system of justice can tolerate such
practice by a lawyer and the same is required to be curbed and
deprecated.
17. Recently, in the judgment, which I have delivered in Civil
Revision Application No.26 of 2016 on 662016 (Satish Mahadeorao
Uke v. The Registrar, High Court of Bombay, Bench at Nagpur, Nagpur),
I have observed in para 25 thereof as under :
“25. A Judge may recuse at his own choice from a case
entrusted to him by the Chief Justice and it would be a matter
of his own choosing. But recusal at the asking of the litigating
party, unless justified, must never be acceded to. This is what
the Apex Court has held recently in NJAC case instituted by the
Supreme Court AdvocatesonRecord Association and another
v. Union of India, reported in 2015 (11) SCALE 1. The
question of recusal is normally decided by a Judge on the basis
of his personal or private interest in the subjectmatter of the
litigation, his intimacy with the party/parties to a lis before
him, his perception about conflict of interest in taking up the
matter, and his own conscience. Such decision does not depend
upon the dictates of lawyers or litigants. ...”
18. Recusal to take the matters to be conducted by some lawyers,
is a matter of Judge's own choosing and it cannot be at the dictates of
the lawyers. What a Judge has to see is that he performs his duty of
deciding the matters before him without fear or favour, affection or
illwill. He has to keep in mind the principle that the justice should
not only be done, but it must appear to have been done. The decision
of recusal to take the matters of lawyers, depends upon the Judge's
personal relations or intimacy with such lawyers, and his own
conscience to decide a case by observing the oath which he has taken
while occupying the position as a Judge. Ultimately, a Judge is also a
humanbeing and the Judges come from different strata of the Society,
having their own views, ideas, angle or perception, based on the
varied individual experience in life, which may or may not match with
each others or with some lawyers or litigants. However, this cannot be
a reason to avoid conducting the matters listed before such a Judge or
the Judges. Once the constitutional authority of a Judge or the Judges
to adjudicate the matters is accepted, it cannot be lowered down by
asking him or them to recuse to hear and decide the matter.
19. To prevent a Judge or the Judges from performing his or
their duties in this fashion causes distraction of attention in the
judicial proceedings, which amounts to interference in the course of
justice. Merely because a lawyer, litigant or public at large feels that
the approach adopted or a decision is wrong, the authority or the force
of the decision does not get eroded. A wrong decision in the matter is
equally enforceable like a correct decision. If the Constitution and the
laws provide a remedy to get such decision corrected in a higher
forum, such a remedy can be availed. Even a wrong decision becomes
final, binding and enforceable like a correct decision, if there is no
remedy available. The lawyers, litigants or public at large cannot run
away from such decision and they have to be cautioned about the
authority of the Courts.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.24 of 2002
Ganesh s/o Ramkisan Bairagi,
V
Yeshoda wd/o Purushottam Landge,
Coram : R.K. Deshpande, J.
Dated : 16th June, 2016
Citation: 2016(6) MHLJ 393
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