Recusal by Judges

In News

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

About Judge Recusal

• When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception that she carried a bias while deciding 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.
• Another instance for recusal is when an appeal is filed in the Supreme Court against a judgement of a High Court that may have been delivered by the Supreme Court judge when she was in the High Court.
• This practice stems from the cardinal principle of due process of law that nobody can be a judge in her case. 
  • Any interest or conflict of interest would be a ground to withdraw from a case since a judge must act fair.
• There have also been several cases where judges have refused to withdraw from a case.
  • For instance, in 2019, Justice Arun Mishra had controversially refused to recuse himself from a Constitution Bench set up to re-examine a judgement he had delivered previously, despite several requests from the parties. 
  • In the Ayodhya-Ramjanmabhoomi case, Justice U U Lalit recused himself from the Constitution Bench after parties brought to his attention that he had appeared as a lawyer in a criminal case relating to the case.

 Process For Recusal

• Once a request is made for recusal, the decision to recuse or not rests with the judge.
• While there are some instances where judges have recused even if they do not see a conflict but only because such apprehension was cast.

Causes of Recusal

• The decision to recuse generally comes from the judge themself as it rests on the conscience and discretion of the judge to disclose any potential conflict of interest. 
• Conflict of interest could be:
  • Judge’s Interest in the subject matter, or relationship with someone who is interested in it;
  • Judge’s Background or experience, such as the judge’s prior work as a lawyer;
  • Judge’s Personal knowledge about the parties or the facts of the case;
  • Judge’s Ex parte communications with lawyers or non-lawyers;
  • Judge’s Rulings, comments or conduct;
• In some circumstances, lawyers or parties in the case bring it up before the judge.
  • If a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.

Legal Provisions for Recusal

• There are no formal rules governing recusals, although several Supreme Court judgments have dealt with the issue.
  • In Ranjit Thakur v Union of India (1987), the Supreme Court held that the tests of the likelihood of bias are the reasonableness of the apprehension in the mind of the party. 
  • A Judge shall not hear and decide a matter in a company in which he holds shares unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised,” 
    • States the 1999 charter ‘Restatement of Values in Judicial Life’, a code of ethics adopted by the Supreme Court.

Challenges with Recusal

• Questions Judicial Independence: An investigation into the cause or reason for recusal by a judge, particularly by a litigant, would itself be an interference with the course of justice.
• Shortage of officers: It allows litigants to cherry-pick a bench of their choice, which leaves a small pool of judges to be able to hear Litigant’s case. Also it becomes an unfair practice.
• Slowing Down the Process: Obstructions like these slower the already slow process of justice delivery.
• No defining law: There are no rules to determine when the judges could recuse themselves. There are only different interpretations of the same situation.

Way Ahead

• 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.
• 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.

Source: TH