Thread by @VakashaS

At Supreme Court for important land acquisition cases up before a Constitution Bench.

ISSUE: When is compensation 'paid' to land owners under Section 24(2) Land Acquisition Act 2013?

CONTEXT: Money paid by big cos to govt treasury, not beneficiaries or court
@TheQuint

WHY IS THIS IN COURT?

➡️JAN 2014: 3 judge bench, SC says compensation to be paid into court, not treasury, so acquisition u/ old 1894 Act deemed to lapse, start anew

➡️FEB 2018: 3 judge bench, SC says paying govt treasury enough, sets aside 2014 decision, no lapse

@TheQuint

WHY IS THIS CONTROVERSIAL?

Justice Arun Mishra, who headed the beach that delivered the Feb 2018 decision...

is now heading the Constitution Bench set up to decide which interpretation of the land acquisition law was right.

More details @TheQuint
thequint.com/news/law/justi…

WHY DOES THIS MATTER?

Section 24(2) says when land acquisitions under the old 1894 Act - often unfair, with inadequate compensation - are deemed to lapse, meaning fresh proceedings under fairer 2013 Act.

Important for farmers, who contest acq. Disliked by big cos.
@TheQuint

There's a full court reference going on for the late Arun Jaitley and Sushma Swaraj, both of whom were esteemed lawyers. Judges and lawyers paying tribute to them.

Court sessions will begin after, hence the delay in the hearings. @TheQuint

Re Justice Mishra's involvement, concerns have been raised over the propriety of him being on this bench when his 2018 decision is on the line.

If he'd just referred issue to a higher bench - as he should have - there would've been nothing to complain about.
@TheQuint

But because he first decided the issue one way and only then referred it, going so far as to declare the 2014 decision per incuriam, raises a reasonable apprehension of bias.

See @gautambhatia88 's analysis on this at his blog: indconlawphil.wordpress.com/2019/10/14/the…

A reasonable apprehension of bias is an objective test laid down in English case law and adopted by Indian courts. Here's how Justice Kurian Joseph summed it up in one of his concurring opinions on the NJAC judgment in 2015:

Not difficult to see how this standard is clearly met in this case.
Also, none of the judges from the 2014 decision could be on bench.

If this case had been heard with some urgency after Feb 2018, would've been possible, as Lokur and Kurian Joseph J retired end 2018 @TheQuint

To better understand what's at stake in all this and why you should care about it, take a look at this thread by @Kum_Sambhav

https://twitter.com/Kum_Sambhav/status/1183302261092405248?s=19

And here's the All India Farmers Association, writing a letter to CJI Ranjan Gogoi, objecting to Justice Arun Mishra heading this bench on this issue @TheQuint:
thequint.com/news/law/farme…

The judges have assembled in the courtroom.

One of the petitioners has raised the question of Justice Mishra's presence on the bench.
@TheQuint

Justice Mishra says it's an issue of law to be decided in these cases, not about his old judgment.

Says everyone has dealt with these matters, so looking for a judge who hasn't taken a view on this matter would leave CJI with a very restricted set of options. @TheQuint

Justice Mishra says this is not an appeal against the Indore Development Authority judgment he delivered in Feb 2018. He is therefore open to taking a different view if persuaded that is correct. @TheQuint

Justice Mishra asks if the petitioners want to make this a legal issue to be decided.

He complains that there are attempts in the media and social media to "malign" the institution by raising questions about the beech and CJI's decision. @TheQuint

Justice Mishra says that there is more to this issue. Notes a similar case earlier when Justice Patnaik heard a case like this (though even in that case Justice Patnaik was asked to recuse).

@TheQuint

Solicitor General Tushar Mehta comes out in support of the judge's position, saying this is a disrespect to not just Justice Mishra, but the other judges on the bench.

@TheQuint

Bit of commotion as senior advocate Rakesh Dwivedi refers to the concept of justice not being done but being seen to be done.

"There are unspoken issues here" says Justice Mishra, referring again to social media. Says makes functioning of judiciary difficult @TheQuint

Justice Bhat says there will often be situations where judge has taken a view in past, say as a High Court judge, but this shouldn't be grounds to claim partiality.

Shyam Divan for one of the parties says they are ready to argue on domestic and international standards @TheQuint

Tushar Mehta says there is a pattern here, where a few days before a major case is heard, things are written on social media or web magazines raising certain objections, that are intended to influence the proceedings.

Justice Vineet Saran points out this happens on the TV also.

Shyam Divan said in between that the lawyers and judges shouldn't be concerning themselves with what's being said on social media.

Now Divan going through legal arguments on why questions of impartiality are not unfounded here.
@TheQuint

Divan is reading from all the orders passed after Justice Mishra's Indore Development Authority judgment, which referred these issues to a Constitution Bench.

@TheQuint

He points out that the initial Constitution Bench said the legal issues before the case included deciding the "correctness of the decisions in Pune Municipal Corporation and Indore Development Authority" - so these cases will require him to look at his own judgment @TheQuint

Justice Arun Mishra says the integrity of institution is at stake.

He says the relevant test is of his own conscience. If he is satisfied that he will not be biased, then he can hear the case.

"If I have any doubt I'd be biased, then I would recuse myself" he says

@TheQuint

Shyam Divan reads various sections from Justice Mishra's own judgment in the Indore Development Authority case, including the findings on how the 2014 decision was per incuriam. @TheQuint

Says this judgment was exhaustive and detailed, and he has the unenviable task of persuading Justice Mishra to change his mind.

Says this does make it difficult to persuade an impartial tribunal as he will have to "assail the correctness of that view." @TheQuint

Divan acknowledges that they could try to argue on first principle, rather than refer to the Pune Municipal Corporation and Indore Development Authority judgments, but this would be very difficult.

He is now submitting caselaw to support his view, starting with the NJAC judgment

This is to set out the test of when there can be a concern that the judge/tribunal hearing a case may not be impartial.

Solicitor General Tushar Mehta says he also has arguments to make based on the NJAC judgment @TheQuint

[Justices Khehar, Chelameswar, Lokur and Kurian Joseph wrote a number of opinions in the NJAC case, where a question had been raised as to whether Justice Khehar should hear that case.]
@TheQuint

Divan is now reading from Justice Chelameswar's opinion, where he looked at law on when a judge should recuse themselves based on the relevant case law in England and India.
@TheQuint

Divan was reading from the judgment at Tushar Mehta's request, Justice Bhat said only the final paragraphs there were important (see image below).

Court breaks for lunch, to resume at 2 pm.
@TheQuint

Matter has resumed.

Divan reads out para 26 from the judgment (see image above). @TheQuint

After reading from the opinions of Justices Khehar and Lokur, Divan is now reading from Justice Kurian Joseph's opinion in the NJAC case (cited in my article) @TheQuint

Divan refers to Justice Joseph's judgment where he talks about the The Bangalore Principles of Judicial Conduct, 2002, which says a judge should recuse themself if it may "appear to a reasonable observer that the judge is unable to decide the matter impartially." @TheQuint

"How do you define impartiality?" asks Justice Arun Mishra.

Divan explains that it comes down to whether it can reasonably said that the judge has a "predisposition" towards a particular view.

He reads the reasonable apprehension test from above again. @TheQuint

Justice Bhat says there are three different tests laid out in the various NJAC opinions on impartiality - the Gough test and the Pinochet tests on personal and pecuniary bias, and then this reasonable apprehension test.

Asks why only the third is being used here. @TheQuint

Justice Bhat also asks if there are any precedents for a judge to recuse for "intellectual bias", which is what's essentially being argued here.

Divan reads from a judgment of the Supreme Court on this: State Of West Bengal vs Shivananda Pathak indiankanoon.org/doc/1740140/
@TheQuint

Divan points to paras 25-28 of this judgment, which surgically talk about a different type of bias apart from pecuniary or personal bias: judicial obstinacy.

Here's what he read out @TheQuint

*specifically

Justice Mishra objects as to the applicability of this precedent to his involvement in this case as it is not an appeal against his Feb 2018 judgment.

Divan responds by reading para 36 of this decision, which refers to sitting in appeal 'collaterally' @TheQuint

Divan then cues another precedent on reasonable apprehension of impartiality, State of Punjab vs Davinder Pal (2011, Supreme Court).

Here again, the judges emphasised that it's not about whether bias has actually affected things or what the judge says
indiankanoon.org/doc/138575974/

Divan next pulls out another 2011 Supreme Court judgment on the standard for assessing bias in Narinder Singh Arora vs State (indiankanoon.org/doc/341190726/)

He cites the paras showing the test of predisposition, see below:

Divan says that in the facts of this case, a reasonable apprehension clearly exists, as Justice Mishra has written a detailed, well-considered 100 page judgment that actually held the other view on the legal issue to be per incuriam. @TheQuint

Divan also points to an article by Justice Sreenivasan which talked about these issues, back in 1992.

Justice Mishra once again indicates that there is more to all of this, that these issues are brought up with some ulterior motives. @TheQuint

Now Justice Mishra objects to repeated use of the word "impartiality" in Divan's argument. "It hurts me" he says, and asks Divan to use a different word. "What will people think if they keep seeing this word?"
@TheQuint

Divan agrees to try and use other words.

Says there is detailed jurisprudence and guidelines on bias across the world.

Justice Mishra says the best principles on judicial conduct are set out in the Restatement of Judicial Values, 1999, for judges of the SC in India @TheQuint

Divan fixtures, points out how these were adopted as the Bangalore Principles on Judicial Conduct 2002, reiterates principle 2.5 - which as Justice Bhat points out, was referred to in Justice Joseph's NJAC opinion cited earlier.

Divan was doing through some examples of how such matters are approached elsewhere in the world.

Matter to resume tomorrow, Divan to continue his arguments on impartiality and recusal. Solicitor General Tushar Mehta wants to have a chance to respond. @TheQuint