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Judicial recusals

 GS Paper 2

Syllabus: Structure, Organization and Functioning of the Judiciary

 

Source: TH

 Context: Calling it an attempt to indulge in ‘bench hunting’, a former SC judge refused (last week) to recuse himself from hearing a plea.

 

What is recusal?

  • It is the act of declining to take part in an official activity, such as a court case because the administrative or court authority presiding over it has a conflict of interest.
  • This conflict of interest can arise in many ways – from holding shares in a litigant company to having a prior or personal association with a party.

 

The practice of judicial recusals stems from:

  • The cardinal principles of due process of law:
    • Nemo judex in sua causa – no person shall be a judge in his own case.
    • Justice must not only be done but must also be seen to be done.
  • The oath of office: Both the SC and HC judges promise to perform their duties without fear or favour, affection or ill-will, in accordance with the III Schedule of the Constitution.
  • Restatement of the Values of Judicial Life adopted by the SC: It forbids a judge from deciding a case where he holds pecuniary interest unless the concerned parties clarify that they have no objections.

  

Recent instances of judicial recusals:

  • In the afore-mentioned case involving a former IPS officer (Sanjiv Bhat), recusal was sought on the ground that there was a likelihood of bias since the same Judge, a Gujarat HC judge had reprimanded the IPS officer.
  • The CJI rejected an application seeking his recusal from hearing petitions seeking legal recognition of same-sex marriages.
  • Justice Gita Gopi of the Gujarat HC recused herself from hearing Rahul Gandhi’s appeal seeking a stay on his conviction in the criminal defamation case.

  

Why do judges recuse?

  • To prevent the perception that the judge was biased while deciding a case.
  • When an appeal is filed in the SC against an HC judgment delivered by the concerned judge before his elevation.

 

What is the procedure for recusal?

  • Although several SC judgments have dealt with the issue, India has no codified rules governing recusals.
  • There are two kinds of recusals – automatic (where a judge himself withdraws from the case) or when a party raises a plea for recusal.
  • The decision to recuse rests solely on the conscience and discretion of the judge and no party can compel a judge to withdraw from a case.
  • If a judge recuses himself, the case is listed before the Chief Justice for allotment to an alternate Bench.

 

Do judges have to record reasons for recusal?

Since there are no statutory rules governing the process, it is often left to the judges themselves to record reasons for recusals.

 

Concerns:

  • The majority of the time, the grounds for recusal are not made public, which endangers judicial transparency.
  • However, the Delhi HC recently ruled that any investigation into the reasons for recusal would constitute an interference with the course of justice.

 

What rules have the SC formulated in the past?

  • Ranjit Thakur v. Union of India (1987): To determine if a judge should recuse, what is relevant is the reasonableness of the apprehension of bias in the mind of the concerned party.
  • State of West Bengal v. Shivananda Pathak (1998): Judicial bias is a condition of mind which renders the judge incapable of impartiality in a particular case.
  • SC Advocates-on-Record Association v. Union of India (2015): Where a judge has a pecuniary interest, no further inquiry is needed to establish whether there is a ‘real danger’ of bias.
  • Indore Development Authority v. Manoharlal and Ors (2019): Merely having a legal opinion does not disentitle one from being impartial.

 

Practice in foreign jurisdictions:

  • The United States has a well-defined law on recusals, which details the grounds for recusal – financial or corporate interest, a case in which the judge was a material witness or a lawyer, and a relationship to a party.
  • The United Kingdom’s law laid down a standard to look at the likelihood of bias from the perspective of a fair-minded and reasonable observer.

 

Conclusion:

  • It is the judge’s ‘constitutional duty’ to be ‘transparent and accountable’ and therefore reasons must be indicated for recusal (Justice Kurien Joseph).
  • There is a need for ‘procedural and substantive rules to deal with the growing frequency of recusal pleas (Justice Madan Lokur).

 

Insta Links:

What is recusal or judicial disqualification of Judges?