Last week former Supreme Court judge Justice M.R. Shah refused to recuse himself from hearing a plea by former Indian Police Service (IPS) officer Sanjiv Bhatt to submit additional evidence to back his Gujarat High Court appeal against his conviction in a 1990 custodial death case.
2. What is Judicial Recusal?
- Whenever there is a potential conflict of interest, a judge can withdraw from a case to prevent the perception that the judge was biased while deciding a case.
- 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.
- Another common reason is when an appeal is filed in the Supreme Court against a High Court judgment delivered by the concerned judge before his elevation.
- The practice stems from the cardinal principle of due process of law nemo judex in sua causa, that is, no person shall be a judge in his own case.
- Another principle guiding judicial recusals is ‘justice must not only be done but must also be seen to be done’ propounded in 1924 in Rex v. Sussex Justices by the then Lord Chief Justice of England.
- By taking the oath of office, judges promise to perform their duties, ‘without fear or favor, affection or illwill’, in accordance with the Third Schedule of the Constitution.
- Furthermore, the Restatement of the Values of Judicial Life adopted by the Supreme Court forbids a judge from deciding a case involving any entity where he holds pecuniary interest unless the concerned parties clarify that they have no objections.
3. What is the Procedure for Recusal?
- There are two kinds of recusals an automatic recusal where a judge himself withdraws from the case, or when a party raises a plea for recusal highlighting the possibility of bias or personal interest of the judge in the case.
- 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.
- While judges have recused themselves even if they do not see a conflict but only because such apprehension was cast, there are also several instances where judges have refused to withdraw from a case.
- In 2019, while hearing a plea on the plight of inmates in Assam’s detention centers, the then CJI Ranjan Gogoi was asked to recuse himself for some adverse oral remarks.
- Mr. Gogoi refused, saying that the plea had ‘enormous potential to damage the institution’. If a judge recuses himself, the case is listed before the Chief Justice for allotment to an alternate Bench.
- India has no codified rules governing recusals, although several Supreme Court judgments have dealt with the issue.
4. Do judges have to record a reason for recusal?
- Since there are no statutory rules governing the process, it is often left to the judges themselves to record reasons for recusals. Some judges specify oral reasons in open court while others issue a written order recording the reasons.
- In other cases, the reasons are speculative. More often than not, the reasons behind a recusal are not disclosed leading to a diatribe against judicial transparency especially when mass recusals occur in sensitive cases.
- For instance, last year, five judges of the Bombay High Court recused themselves from the Bhima Koregaon case.
- Similarly, the recusal of Supreme Court judge Justice Bela M. Trivedi earlier this year from hearing Bilkis Bano’s plea led to widespread speculation since no reasons were specified.
- The recusal was largely attributed to Justice Trivedi’s deputation as Law Secretary to the Gujarat government from 2004 to 2006.
- The Delhi High Court recently ruled that no litigant or third party has any right to intervene, comment or enquire regarding a judge’s recusal from a case.
5. What are the rules governing judicial recusal in India?
- No codified rules governing recusals - Several Supreme Court judgments have dealt with the issue in India.
- Supreme Court - Over time outlined various factors to be considered for deciding a judge's impartiality.
- Ranjit Thakur v. Union of India (1987) - SC held that it is important for the judge to be honest in the eyes of the concerned party rather than himself.
- State of West Bengal v. Shivananda Pathak (1998) - Defined that it is a condition of mind which renders the judge incapable of impartiality in a particular case, the Court explained.
- Supreme Court Advocates-on-Record Association v. Union of India (2015) - The court observed that where a judge has a pecuniary interest, no further inquiry is needed as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias.
- Indore Development Authority v. Manoharlal and Ors (2019) - The court held that a judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench to which a reference is made.
6. What is the judicial recuse practice in foreign nations?
- The Code of Conduct for United States Judges defines judicial recusal.
- The Code of Conduct provides that a judge must recuse themselves if they have a financial interest in the outcome of the case, or if they have a close personal relationship with one of the parties.
- The Code of Conduct also provides that a judge must recuse themselves if there is a reasonable apprehension of bias.
- The Judicial Conduct and Investigations Office (JCIO) is responsible for investigating allegations of judicial misconduct.
- JCIO has published guidance on judicial recusal, which sets out the principles that judges should follow when considering whether or not to recuse themselves.
- Canadian Judicial Council (CJC) is responsible for overseeing the conduct of judges.
- CJC has published a code of conduct for judges, which sets out the rules governing judicial recusal.
For Prelims: High Court, Supreme Court, Canadian Judicial Council (CJC), Judicial Conduct and Investigations Office (JCIO), Judicial Recusal, Ranjit Thakur v. Union of India (1987), State of West Bengal v. Shivananda Pathak (1998), and Custodial death.
For Mains: 1. What is Judicial Recusal? Discuss the rules governing judicial recusal in India.
Source: The Hindu