JUDGES RECUSAL

• 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.
• Bhatt contended that there was a reasonable apprehension of bias as Justice Shah, as a High Court judge, passed strictures against him while hearing his plea linked to the same FIR. However, Justice Shah dismissed the plea as an attempt to indulge in ‘bench hunting’.
• Similarly, a few weeks ago, the Chief Justice of India D.Y Chandrachud rejected an application seeking his recusal from hearing petitions seeking legal recognition of same-sex marriages.

Why do judges recuse?

• 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 favour, affection or ill-will’, 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.

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 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’.
• 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 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.
• In the 2015 Supreme Court judgment striking down the National Judicial Appointments Commission (NJAC), a claim for Justice J.S. Khehar’s recusal was made on the ground that he was a member of the Collegium.
• In his concurring opinion, Justice Kurien Joseph wrote that it was the judge’s ‘constitutional duty’ to be ‘transparent and accountable’ and therefore, reasons must be indicated for recusal. This will negate any room for attributing any motive for the recusal, he said.
• On the contrary, Justice Madan Lokur was of the opinion that citing reasons for recusal is unwarranted, expressing apprehension about a scenario where a party may challenge the reasoning before a court and it would set aside the recusal, ruling that the reason was frivolous.
• He, however, highlighted the need for ‘procedural and substantive rules’ to deal with the growing frequency of recusal pleas.
• 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 rules has Supreme Court formulated in the past?

• The Supreme Court has over time outlined various factors to be taken into consideration for deciding the impartiality of a judge. In Ranjit Thakur versus Union of India (1987), the SC held that to determine if a judge should recuse, what is relevant is the reasonableness of the apprehension of bias in the mind of the concerned party.
• “The proper approach for the Judge is not to look at his own mind and ask himself, however honestly, “Am I biased?” but to look at the mind of the party before him,” the Court ruled.
• The SC in State of West Bengal versus Shivananda Pathak (1998), defined judicial bias as a “preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction”.
• Thus, it is a condition of mind which renders the judge incapable of impartiality in a particular case, the Court explained.
• Formulating a more definite rule in the Supreme Court Advocates-on-Record Association versus the 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.
• However, other cases require such an inquiry, with the relevant test being the ‘real danger’ test— whether there is a ‘real danger’ of bias, to ensure that the court is thinking in terms of possibility rather than the probability of bias.

What do some of the recent recusal orders say?

• In February, Additional Sessions Judge Arul Varma recused himself citing ‘personal reasons’ less than a week after discharging Jawaharlal Nehru University student Sharjeel Imam and 10 others in the 2019 Jamia Millia Islamia violence case.
• The judge called the student activists arraigned in the case “scapegoats” and added that the police had “trampled the rights of the accused”. On March 28, the Delhi High Court set aside Varma’s order.
• Delhi High Court judge Justice Anup Jairam Bhambhani in March recused himself from hearing accused Asif Iqbal Tanha’s plea against the ‘leak’ of his alleged confession statement by the Delhi Police to the media in a 2020 Northeast Delhi riots “larger conspiracy” probe.
• He observed that “no act on the part of a court must in any manner have a deleterious impact on the credibility of the justice system”.
• During an earlier hearing, Justice Bhambhani indicated he may have to recuse himself after News Broadcasters & Digital Association (NBDA) moved an intervention application saying he had a “past association” with them.
• He remarked during proceedings that a judge’s “comfort level” is also a consideration when it comes to recusals, adding, “I never get into a matter where I myself am not comfortable with my independence”.

What about foreign jurisdictions?

• Contrasted with India, the U.S. 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.
• However, on several occasions, judges recuse on their own — known as sua sponte recusals.

SOURCE: THE HINDU, THE ECONOMIC TIMES, PIB