A Supreme Court judge recused herself from hearing a writ petition filed by Bilkis Bano against the decision to prematurely release 11 men sentenced to life imprisonment for gang-raping her during the 2002 riots.

What is the Recusal of Judges?

• Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
• Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
• For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
• Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
• A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

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.

Issues with recusal

• 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 his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
• It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.

Back2Basics: Bilkis Bano Case

• Bilkis Bano is a gangrape survivor of the 2002 riots in Gujarat. Rioters brutally attacked Bilkis and her family, raped the women and killed many of them.
• Her case was taken up by the National Human Rights Commission (NHRC) and Supreme Court. Later, the Supreme Court transferred the investigation to the CBI and the case to Mumbai to facilitate a free and fair trial.
• Eleven men were convicted by the trial court and sentenced to life. The Bombay High Court confirmed their life terms in 2017.
• In 2019, the Supreme Court awarded compensation of Rs 50 lakh to Bilkis — the first such order in a case related to the 2002 riots.
• The convicts were later released after the state government’s remission to them for spending more than 15 years in jail.

Issues with this remission

• Causality of a heinous crime: The remission runs contrary to the spirit of contemporary thinking on treating crimes against women and children as so heinous that the perpetrators should not be considered for remission.
• Whimsy release: The CrPC does permit premature release in the form of remission or commutation in life sentences, but it should be based on a legal and constitutional scheme, and not on a ruler’s whimsy.
• Political considerations: It would be unjustified if given for political considerations merely because of elapse of the minimum number of years they have to serve.

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