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Recusal of Judges – When can a judge recuse from a case?

Recusal of Judges – When can a judge recuse from a case?

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  • GS 2 || Polity || Judiciary || Supreme Court

Why in news?

  • Recently, Two Supreme Court judges have recused themselves from hearing cases relating to West Bengal.

More in news

  • On June 21, Delhi High Court judge AnupBhambhani recused himself from hearing a plea by digital media houses challenging the validity of the IT rules regulating intermediaries.

Why does a judge recuse?

  • To Prevent Perception of Bias: When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception that he carried a bias while deciding the case.
  • Nemojudex in causasua:This Latin term translates to “nobody should be a judge in his/her case” which is a cardinal principle of due process of law.
  • Fair & Trustworthy system:Any interest or conflict of interest should be a ground to withdraw from a case since a judge must act fairly. Recusal during such a situation leads to a reliable, trustworthy judicial system.

Grounds for Recusal

  • The judge is biased in favour of one party, or against another, or that a reasonable objective observer would think he might be.
  • Interest in the subject matter, or relationship with someone interested in it. Background or experience, such as the judge’s prior work as a lawyer.
  • Personal knowledge about the parties or the facts of the case.
  • Ex parte communications with lawyers or non-lawyers.
  • Rulings, comments, or conduct.

Rules on Recusals

  • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
  • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
  • The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

Can a judge refuse to recuse?

  • The decision to recuse or not to recuse is made by the judge after a request for recusal is made.
  • While there have been some cases where judges have recused themselves even when they do not see a conflict, it is only because such apprehension was expressed, there have also been several cases where judges have refused to withdraw from a case.
    • In the Ayodhya-Ramjanmabhoomi case, Justice U U Lalit recused himself from the Constitution Bench after parties informed him that he had appeared as a lawyer in a criminal case related to the case.
    • In 2019, Justice Arun Mishra controversially refused to recuse himself from a Constitution Bench convened to re-examine a previous judgment he delivered on the 2013 Land Acquisition Act.

Other recent cases

  • Judge Loya case – In 2018, petitioners in the Judge Loya case sought the recusal of SC judges from the Bench. The court refused the request and observed that recusal would mean abdication of duty.
  • Assam’s detention centres case – In 2019, the then-Chief Justice Ranjan Gogoi was asked to recuse himself in the middle of a hearing of a PIL filed about the plight of inmates in Assam’s detention centres.
  • Justice Gogoi said that a litigant cannot seek recusal of the judge. The court observed that the judicial functions may involve the performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision.
  • If the assertions of bias as stated are to be accepted, it would become impossible for a judge to seek clarifications and answers.

Issues with the recuse of Judges

  • Recusal is also considered an abdication of duty. Maintaining institutional civilities is distinct from the judge’s fiercely independent role as an adjudicator.
  • Difference interpretations
  • There is a rule that no person should be a judge in her cause. But there are cases where somebody else’s cause becomes the judge’s own as the case proceeds.
  • Also, there are some cases where a judge has appeared for one of the litigants at some stage in the same dispute.
  • Even then, as there are no rules to determine when the judges could recuse themselves in these cases, different interpretations remain.
  • Undermining judicial independence
  • Judges of both the Supreme Court and the lower courts swear an oath of office, promising to carry out their duties and deliver justice “without fear or favour, affection or ill-will.”
  • However, there are many cases in which the litigants request that the judge recuse himself from the case.
  • However, this allows litigants to cherry-pick a bench of their choice, undermining judicial fairness.
  • Furthermore, the purpose of recusal in these cases undermines the judges’ independence and impartiality.
  • NJAC decision in 2015
    • Justice Kurian Joseph In his separate opinion in the NJAC decision in 2015, emphasized the importance of judges providing reasons for recusal as a measure to increase transparency.
    • He ruled that it is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and thus a judge is required to indicate reasons for his recusal from a specific case.
    • Supreme Court Advocates-on-Record Association v. Union of India (2015)
  • Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015)held that “Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion of bias is required to be undertaken”.

Conclusion

  • Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
  • In the words of John Rawls, “justice is the first virtue of a social system, just as truth is the first virtue of the system of thought.” This indicates the utmost importance of ‘justice’ as a value in our society.
  • It is the constitutional duty,as reflected in one’s oath, to be transparent and accountable, and fair in justice delivery, and hence, a judge is required to indicate reasons for his recusal from a particular case.
  • Upholding justice is not only the duty of those in power but is also the foundation of people’s trust in the governance structure.

Mains model question

  • Recusal has become a morally selective call for Supreme Court justice. Discuss.

References

  • https://indianexpress.com/article/explained/how-judges-recuse-from-cases-and-why-7371106/