Plea to recuse could be contempt

Simmering in the midst of the ‘vote for cash’ scandal is another sub plot that revisits certain sensitivities and how a civilised society is best maintained by keeping up certain norms. Norms at the cost of truth is dangerous but to be the judge of truth when you are passionately involved in a cause can be dangerous precedent. Great players in the drama add serious contours to the controversy.

When a sitting legislature states that he desires a judge must recuse from hearing a case on the count of confidence, the implications are far more than can be cited by the laity. Justice B Siva Shanker Rao in a detailed order chose to initiate contempt proceedings against the MLA. The debate will go on. Are judges a variety that brook no criticism? Are they a social paradox taking advantage of a social fiction? Should truth not be made a valid defence in a case of contempt? These are larger issues and could be attended to on another occasion.

For now let us follow the reasoning of Justice Siva Shanker. The direction of the present exercise would be to personally withdraw from commenting and instead quoting, albeit copiously from the order of the judge. For brevity his name shall not be repeated. The judge while issuing notice to the contemnor quoted Benjamin Cardozo about the role of a judge as: he is not to yield to spasmodic sentiment, to vague and unregulated benevolence.

He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in social life. Wide enough in all conscience is the field of discretion that remains. “Again inspired by a verdict of unimpeachable logic and reasoning he reminds that: India places human rights and dignity for human life at a much higher pedestal .

In our jurisprudence an accused is presumed to be innocent till proven guilty ….” Sieving the march of events qua the allegations he referred to the practice of judges taking up matters out of turn after a mention is made to accommodate lawyers, their inconveniences or the urgency of a matter. With unconventional modesty he refers to his experience in division benches and points out that it is a system that he has seen senior judges observe and thus finds nothing wrong in the practice.

“Thus the petition of the recuse petitioner/ de facto complainant in asking the court to recuse the matter by expressing apprehension of any reasonable bias is untenable. The recuse petition is nothing but bench hoping and bench avoiding and for that by resorting to make contemptuous allegations against the Judge ignoring the responsibility, as representative of the people.”

The judge pointed out that the action of the MLA had the effect to erode the public confidence against the Justice delivery system. He pointed out that: The judges of higher echelons thereof should not be mere men of clay with all the frailties and foibles, human failings and weak characters which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort.

In a scholastic exposure of the case law of the subject the judge pointed to an important test that the apprehension must be real and ensure against one making “wild irrelevant and imaginary allegations to frustrate a trial” In a no holds bar punch the judge added: making of baseless allegations or insinuations against Court and attempts to overawe the Court with psychological offensives and mind games, with ferocity and grandiloquence without any factual basis held to be strongly repulsed and stringently deprecated “ He also pointed out to the ratio laid down in the case of Subarto Roy and pointed out even where it is on the ground of possible embarrassment : would constitute act of breach of oath. Will members of the Executive be reined in? Will they who live in glasses houses stoop meddling with stones? Time will tell, tide will decide.

By L Ravichander