Central Idea

Recusals by judges have been a frequent occurrence in recent weeks, raising important questions about the circumstances under which judges should recuse themselves, the need for recording reasons for recusal, and the reliance on individual judges’ discretion.

What is Recusal?

• 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.

Reasons for Judicial Recusal

• Conflict of interest: Recusal often occurs when a judge has a direct conflict of interest or a prior association with the parties involved in a case. For instance, if a judge holds stakes in a company involved in the case, it would be reasonable to recuse themselves.
• Earlier difference of opinion: Similarly, if the judge previously represented one of the parties in a case, recusal may be necessary.
• Prevent bias: Some judges may recuse themselves based on apprehension of bias, while others may refuse to withdraw, considering the potential damage to the institution.
• Absence of Codified Rules: India currently lacks codified rules specifically governing recusals, but the Supreme Court has addressed the issue through various judgments.

Procedure for Recusal

• Automatic and Plea-based Recusal: Recusal can happen automatically when a judge recognizes a conflict of interest or when a party raises a plea for recusal due to bias or personal interest.
• Judge’s Discretion: The decision to recuse rests solely on the conscience and discretion of the judge; no party can compel a judge to withdraw.
• Transfer of the Case: When a judge recuses, the case is transferred to the Chief Justice, who reassigns it to an alternate bench to ensure the continuity of proceedings.

Recording Reasons for Recusal

• Responsibility of Judges: Since there are no statutory rules, judges are responsible for recording their reasons for recusal.
• Oral or Written Disclosure: Reasons for recusal can be specified orally in open court or through a written order, or they may remain undisclosed.

Criticism

• Lack of transparency: This regarding reasons for recusal has faced criticism, particularly when mass recusals occur in sensitive cases.
• Motives undisclosed: Some judgments have argued for the need to indicate reasons to avoid attributing motives to recusals, while others express concerns that specifying reasons could lead to challenges and hinder the recusal process.
• Inevitable delay: Recusal inevitably leads to delays in the proceedings as the case is transferred back to the Chief Justice, who must assign it to a fresh bench.

Past Supreme Court Rules on Recusal

• Factors for Impartiality: The Supreme Court has established various factors to determine the impartiality of a judge in previous judgments.
• Reasonableness of Apprehension: The reasonableness of the party’s apprehension of bias is a crucial consideration when deciding whether recusal is necessary.
• Definition of Judicial Bias: Judicial bias is defined as a predisposition that compromises a judge’s impartiality.
• Real Danger Test: Pecuniary interests automatically disqualify a judge, while other cases require applying the “real danger” test to evaluate the possibility of bias.

Issues with Recusal

• Abdication of Duty: Recusal has been viewed as a potential abdication of a judge’s duty, raising concerns about maintaining institutional civility while fulfilling the independent role of judges as adjudicators.
• Importance of Providing Reasons: Justice Kurian Joseph, in his separate opinion in the 2015 National Judicial Appointments Commission (NJAC) judgment, emphasized the importance of judges providing reasons for recusal to enhance transparency.
• Constitutional Duty for Transparency: Indicating reasons for recusal is a constitutional duty, reflecting the need for judges to be transparent and accountable.

Practices in Foreign Jurisdictions

• United States: It has well-defined laws and codes that explicitly detail grounds for recusal, such as financial interests, prior involvement as a lawyer or witness, and relationships with parties.
• United Kingdom: It has adopted the “real danger” test to disqualify judges based on substantive evidence of bias, although this approach has faced criticism.

Importance of Appearance of Bias

• The European Convention of Human Rights emphasizes the significance of the “appearance of bias” to ensure fairness from the perspective of a reasonable observer.

Way Forward

• To ensure fairness and maintain public trust in the justice system, it is crucial to establish clear guidelines and rules for recusal in India.
• Codifying principles, requiring judges to record reasons for recusal, and promoting transparency can address concerns about bias and uphold the integrity of the judiciary.
• Learning from foreign jurisdictions, such as studying the comprehensive recusal laws in the United States, can provide valuable insights for developing a robust framework for recusal in India.
• Enhancing transparency and accountability in the recusal process will contribute to a stronger and more trusted judicial system.

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