RECUSAL
OF JUDGES - POLITY
News:
Explained | Why do judges
recuse themselves and how?
What's
in the news?
●
Last week former Supreme Court judge
Justice MR 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.
Reasons
for recusal of judges:
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Due to the potential conflict of interest, a judge can withdraw from a case to
prevent the perception that the judge was biased while deciding a case.
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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.
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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.
Principle
behind judge’s recusal:
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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.
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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, both
of the Supreme Court and High courts, promise to perform their duties, ‘without
fear or favour, affection or ill-will’, in accordance with the Third Schedule
of the Constitution.
●
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.
Procedure
for recusal:
There are two kinds of
recusals such as
●
Automatic
recusal where a judge himself withdraws from the case.
●
When
a party raises a plea for recusal highlighting the
possibility of bias or personal interest of the judge in the case.
Authority
to decide:
●
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 centres, 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’.
What
happens after recusal?
●
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.
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.
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Some judges specify oral reasons in open
court; others issue a written order recording the reasons while in some cases
the reasons are speculative.
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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.
○
Earlier, five Supreme Court judges recused
themselves from hearing pleas by another accused in the case, activist Gautam
Navlakha.
Recent
ruling by Delhi HC:
●
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.
What
is the practise in foreign jurisdictions?
Rules
in US:
●
Contrasted with India, the United States
has a well-defined law on recusals —
Title 28 of the U.S. Code details the grounds for ‘disqualification of
justice, judge, or magistrate judge’.
●
Such rules are also codified in the American
Bar Association’s Model Code of Judicial Conduct.
○
This specifies three 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.
○
This is an indicative list: these grounds
are expressly stated to be non-exhaustive.
○
However, on several occasions, judges
recuse on their own— known as sua sponte recusals.
Rules
in UK:
●
The United Kingdom’s law on judicial
recusals evolved through judicial
pronouncements.
●
In
the landmark case of R v. Gough, the ‘real danger’ test was
adopted as the applicable standard based on which recusal orders need to be
passed.
●
The test entailed disqualification solely
on substantive and tangible evidence which conclusively highlights the presence
of judicial bias and prejudice.