JUDGES RECUSE

1. Context

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?