Recusals By Judges

In News

Recently, Two Supreme Court judges have recused themselves from hearing cases relating to West Bengal.

• On June 21, Delhi High Court judge Anup Bhambhani recused himself from hearing a plea by digital media houses challenging the validity of the IT rules regulating intermediaries.

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 practise 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.

Process For Recusal

• The decision to recuse generally comes from the judge herself as it rests on the conscience and discretion of the judge to disclose any potential conflict of interest. 
• 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.
• 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.

• 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.
  • 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. 
    • Justice Mishra had reasoned that the request for recusal was an excuse for “forum shopping” and agreeing could compromise the independence of the judiciary.
    • 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.

Recording of  Reasons for Recusal

• Since no formal rules are governing the process, it is often left to individual judges to record reasons for recusal. 
• Some judges disclose the reasons in open court; in some cases, the reasons are apparent. 
  • The two Supreme Court judges who have recused themselves from cases relating to West Bengal had been Calcutta High Court judges.
    •  The cases they have recused from relating to post-poll violence in the state and the Narada scam, which have become political battles between the state and Centre in court.
• In his opinion in the National Judicial Appointments Commission judgment in 2015, Justice (now retired) Kurian Joseph, who was a member of the Constitution Bench, 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.

Conclusion

• 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: IE