Having gambled and lost his kingdom, his brothers, himself and his wife, Yudhishthira has become a slave of his cousins, the Kauravas. Dusshasan holds Draupadi by the hair and drags her into the sabha, the court. Draupadi pleads for justice. She turns to Bhishma, eldest living member of the Kuru dynasty, and seeks his intervention. If my husband gambled away his own freedom first, how can he, a slave, put me, a free woman and a princess of this house, as his stake in the next round of gambling, she asks. Bhishma hangs his head down. Can a man who would gamble away the woman he has married even call himself a husband and exercise the right of a husband over his wife, she persists. Bhishma recuses himself. Dusshasan does not.
Jesus, the troublemaker, asking people to rebel against the powers that be, in deference to divine justice rather than to Caesar, and proclaiming his own authority to determine what is just in his capacity as King of the Jews, is prosecuted for sedition and brought before the Roman governor of Judea, Pontius Pilate. Pilate can either set him free or order his death by Crucifixion. Pilate initially says he does not find merit in the charges against Jesus and wants to set him free. The crowd bays for blood and shouts rejection of the proposal. Pilate says, I recuse myself.
King Solomon is called on to settle a dispute between two women, both of whom claim an infant as their own. The babe is capable of articulating only a shrill desire to suckle and is unfit to take the witness stand. Men are naturally conditioned to not offer definitive testimony about parentage. Genetic sampling is unknown to ancient Israel, unlike to a certain other old civilisation, which had already mastered genetic engineering, flying machines and gravity. No one knows how to settle the women’s dispute. Solomon says the solution is simple: cut the child into two, and let each woman take one half each. The media praises his wisdom, and debates whether the division should be horizontally across the waist or vertically from head to toe. One woman agrees to the division of the child. The other woman withdraws her claim: she’d much rather see the child whole and alive, even if not as hers. Solomon says, I recuse myself.
On June 12, 1975, Justice Jagmohanlal Sinha prepares to deliver his verdict in Rajnarain vs the state of Uttar Pradesh, in which Rajnarain accused Indira Gandhi of electoral malpractice and asked that her election from Rae Bareli in 1971 be rendered void. The judge recuses himself, at the last moment.
May 3, 2010. Arthur Road jail. Time for special judge R L Tahaliyani to deliver his judgment in the case against Ajmal Kasab, the one attacker caught alive after the November 26, 2008 assault on Mumbai by ten Pakistan-trained terrorists who travelled by sea from Karachi to Mumbai to shoot and bomb 166 innocent civilians to death. The judge recuses himself.
The recusals by the judges in the examples above, save that of Bhishma, are, of course, counterfactuals, merely intended to highlight the absurdity of such arbitrary refusal by judges to discharge their duty.
In India, three judges of the Supreme Court recused themselves from hearing the bail plea of Gautam Navlakha, accused of conspiracy behind the Bhima Koregaon violence on January 1,2018. On August 28 that year, the Maharashtra Police arrested five people: poet Varavara Rao, lawyers Sudha Bharadwaj, Arun Ferreira and Vernon Fernandes, and rights activist Gautam Navlakha for the Bhima Koregaon violence. Apart from accusing them of conspiring to create violence, the police also claimed they were planning to assassinate Prime Minister Modi. Five other activists were also arrested on the same charges. The arrested are being held under stringent Unlawful Activities (Prevention) Act. The courts at various levels have refused to grant them bail and have allowed the police to take more than a year’s time to produce the evidence they claim to have against the activists. Yet, all these individuals, active in the defence of Dalit and tribal rights and of human rights in general, stand deprived of liberty without any firm evidence of wrongdoing or the benefit of trial.
Such inaction in the face of gross injustice amounts to collusion in its perpetration. Further, such conduct by the higher judiciary encourages lower level court officials to misbehave even more blatantly. The Chief Judicial Magistrate of Muzaffarpur ordered the police to charge with sedition 49 writers and artistes who had written to the Prime Minister to stem acts of mob violence across the country in the name of religion.
Time and again, the Supreme Court has clarified that for the charge of sedition under Section 124A of the Indian Penal code to hold, incitement to imminent violence is a precondition. When a Chief Judicial Magistrate chooses to ignore this dictum of the Supreme Court, the Apex Court should, suo motu, take action against the judicial official in question, for gross ignorance of the law or, if he was acquainted with the Supreme Court’s view on the subject, defiance of the Apex Court.
The routine postponement of the deadline for the police to submit the evidence they have to justify depriving people of their liberty and benign indifference to officials of the court who flout the Supreme Court’s norms of justice amount to what Hannah Arendt called the banality of evil.
(DISCLAIMER: Views expressed above are the author’s own.)
via Judicial recusal, omission and commission of injustice