There is no denying that a judge’s mental makeup can be a determining factor in the adjudication of a case. A landlord with a cast iron case is unlikely to succeed before a judge who believes that the tenant must be judicially protected even if the Rent Act does not protect him. Likewise a judge with a pro-landlord mentality will readily evict a tenant because the landlord desires more comfortable accommodation even though the requirement of need is not established. Understandably a litigant wants to avoid a bench whose mindset is unsympathetic to his case. However a litigant cannot be permitted to choose his bench. Hence varying strategies are employed by the litigant or rather his lawyer. The foremost is an attempt to fix the Registry to place the litigant’s case before a favourable bench or remove it from the list of an unsympathetic court.

Apparently there are more sophisticated ways of avoiding a bench. An eminent senior lawyer addresses a letter to the bench before whom his client’s case in normal course would be taken up for hearing and expresses his “embarrassment” to appear before the particular bench. If the lawyer felt embarrassed for some reason the proper course was to recuse himself rather than in effect ask the bench to recuse itself. The sad part is that the move succeeded. Justice B.N. Agrawal, the presiding judge, refused to hear the criminal appeal of the Ansals.

This expedient was recently repeated. A senior advocate, who was a former law minister, in his written application sought recusal of Justice Pasayat from hearing the case fixed before him inter alia on the ground that Justice Pasayat “may have subconscious influence of feelings” to feel aggrieved with relation to some passages in a certain book resulting in likelihood of bias. It is surprising that on mere oral submission of the alleged apprehension of bias and without dealing with the recusal application, Justice Pasayat, a no-nonsense judge of impeccable integrity, acceded to the request. Possibly it was because of the anguish he understandably felt by the allegation of bias. However the litigant’s aim of avoiding the bench was achieved. One wonders about the bench’s reaction if a junior counsel had written a similar letter or made allegations of bias. Regrettably a wrong message is sent that if a litigant cannot fix the Registry then resourceful senior counsel can help him out in forum shopping. This disturbing trend must be sternly discouraged by judges who are men of fortitude and surely have broad shoulders to deal with recusal applications.

... contd.