3rd SC judge recuses from hearing on Rao's appointment as interim CBI director

The Supreme Court on Thursday set up a fresh bench headed by Justice Arun Mishra to hear a petition challenging the Centre's decision to appoint M Nageswara Rao as interim Central Bureau of Investigation director after Justice N V Ramana recused himself from hearing it citing social reasons.

Justice Ramana expressed his disinclination to hear the matter saying he belongs to Andhra Pradesh, from where Rao hails, and had attended the wedding of the IPS officer's daughter who is married to an advocate known to him.

He became the third judge of the apex court to recuse himself from hearing the matter after Chief Justice of India Ranjan Gogoi and the second senior-most judge in the top court Justice A K Sikri.

Both had recused themselves earlier from adjudicating the case.

The matter would now come up for hearing on Friday before a bench, also comprising Justice Navin Sinha.

Justice Mishra is number five in seniority among the judges of apex court after the CJI and Justices Sikri, S A Bobde and Ramana.

Hearing of the matter by Justice Mishra assumes significance as he authored a recent judgement in which he came down heavily on a section of lawyers, who criticise judges in the media and attribute "political colour" to judgements.

Justice Mishra was also the target of some activist lawyers when he was dealing with some sensitive matter assigned to him by the then Chief Justice of India. Sources said he had protested in the meeting of apex court judges after the case handled by him was mentioned at the January 12, 2018 press conference by the four judges including the present CJI Ranjan Gogoi.

The plea filed by NGO Common Cause, which has challenged Rao's appointment as interim CBI Director, came up for hearing on Thursday before a bench comprising Justices N V Ramana, M M Shantanagoudar and Indira Banerjee.

"I am recusing myself because I know him (Rao) as he is from my home state," Justice Ramana said.

Senior advocate Dushyant Dave, appearing for the NGO, said, "Should I go to the Delhi high court? Every judge in the Supreme Court is recusing himself from hearing the matter."

To this, Justice Ramana observed, "If the issue was not about M Nageswara Rao, I would have heard it. I had attended his (Rao) daughter's marriage. His (Rao) son-in-law is a practising advocate. I know him also."

Dave then urged the bench that the matter should be listed before another bench on Friday.

"List this matter before a bench, of which one of us (N V Ramana, J) is not a member," the bench said in its order.

"The registry is directed to place this matter before the Chief Justice, for listing of this matter before an appropriate bench," the bench said.

On January 10, Rao, additional director in CBI, was made the interim chief of the agency till the appointment of a new director, after IPS officer Alok Kumar Verma was removed from the post of CBI director by a high-powered committee headed by Prime Minister Narendra Modi.

Earlier, CJI Gogoi had recused himself from hearing the NGO's plea, saying he would be part of the Selection Committee for choosing the probe agency's new chief.

Thereafter, the matter came up for hearing on January 24 before a bench headed by Justice A K Sikri.

Justice Sikri, who had represented CJI Gogoi in the committee, which removed Verma as CBI director on January 10, recused from hearing the case without giving any specific reason.

"You understand my position. I can't hear this matter," Justice Sikri had said.

The high-powered committee to select the CBI director comprises the prime minister, the leader of the largest opposition party and the CJI or his nominee judge of the apex court.

Congress leader Mallikarjun Kharge, who is a member of the high-powered selection panel, had said on Wednesday that the committee's next meeting would take place on Friday.

The last meeting of the committee took place on January 24 but it remained "inconclusive".

In its petition in the apex court, the NGO has sought specific mechanisms to ensure transparency in the process of appointing the CBI director.

It has alleged that Rao's appointment was not made on the basis of the recommendations of the Selection Committee.

The plea has alleged that the October 23 last year order of the government appointing Rao as interim CBI director was quashed by the top court on January 8 but the Centre "acted in a completely mala fide, arbitrary and illegal manner" to appoint him again in "complete contravention" of the Delhi Special Police Establishment Act.

It has sought a direction to the Centre to appoint a regular CBI director forthwith.

The plea has also sought immediate direction to the government to ensure that "all records" of deliberations and rational criteria related to short-listing and selection of the CBI director be properly recorded and made available to citizens in consonance with the provisions of the RTI Act.