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5. In view of the second order, Mr. R.K. Anand has made the second prayer in the application under consideration. In general terms, the submission being that there is a difference of opinion between the two learned judges regarding the disposal of the application for recusal and, therefore, the difference of opinion should be resolved by a third learned judge.

6. The third order passed on 4th October, 2007 (by the Bench) really provides a cue to the controversy and has, in our opinion, a vital impact on the second prayer made in the application under consideration. It is, therefore, necessary to quote the third order in full. This reads as follows:

29. It is possible to argue (though we do not give any final conclusion on it, since it is not necessary to do so) that Misra, J was entitled to take a view on the application for recusal even if 'allegations' were made only against Sarin, J. This is because it is the Court that speaks, not an individual judge. This appears to be so from In re Arundhati Roy (2002) 3 SCC 343 where a request was made that one of the learned judges recuse himself from the case and that request was turned down by the Bench, not by the individual judge. Similarly, in P.K. Ghosh v. J.G. Rajput the Supreme Court held that one of the learned judges constituting the Bench ought to have recused himself from hearing the matter (on merits) but did not find fault in the Bench per se hearing the matter even though the 'allegations' pertained only to one learned Judge.

37. Similarly, an application for the recusal of Justice Scalia from hearing Cheney, Vice President of the United States v. United States District Court for the District of Columbia 542 US 367 (2004) was heard and decided, not by the Court, but by Justice Scalia only. In Laird v. Tatum 409 US 824 (1972) Justice Rehnquist alone decided an application for his recusal from a case. He stated the practice followed in the United States Supreme Court in Hanrahan v. Hampton 446 US 1301 (1980) in the following words:

47. It may be mentioned that learned Counsel for the Applicant referred to a few decisions of this Court where there has been a difference of opinion between two learned judges and also the procedure for making a reference to a third learned judge. Since we have come to the conclusion that there was no difference of opinion between Sarin, J and Misra, J it is not necessary to deal with those decisions.

48. As a postscript, we may add that a copy of this decision be placed before Hon'ble the Chief Justice for framing a practice direction, if deemed advisable, to the effect that when an application for recusal of a judge is made, then that application should be considered only by that learned judge and his decision on the application would be final, since the application would essentially pertain to him only. This would not only set a healthy practice to be followed but would also obviate any unnecessary discussion as has happened in this case.