Introduction

The Third Schedule of the Constitution of India provides for the oath of judges that highlights that a judge will “…perform the duties of my office without fear or favour, affection or ill-will” which very categorically provides for the premise on which the principle of recusal is based. Hon’ble Justice Kurian Joseph has also affirmed the same, “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”. Judicial impartiality is the cardinal principle over which the whole institution of the judiciary stands. The masses have faith in this institution because they believe that the judges are neutral arbiters who are needed to make sure that no one’s life, liberty, or property will be seized based on an erroneous or inaccurate understanding of the facts or the law. The judge must decide a matter fairly and impartially.

In the words of Sir Stephen Sedley, “Independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them”.The entire discussion regarding judicial recusal is a tussle between the principle of judicial autonomy and the right of the parties to have a fair trial. A lot has been discussed and deliberated about the philosophy behind judicial recusal and its need and the same has also gained prominence in the light of recent incidents. The stepping away of Justice Kaushik Chanda of the Calcutta High Court from hearing the high-profile Nandigram Petition filed by Mamta Banerjee was also in news. However, the most important question related to this conundrum remains unanswered: how to decide whether a particular judge should recuse or not.

The Black’s Law Dictionary defines recusal as the removal of oneself as a judge or a policymaker in a particular manner, specifically due to a conflict of interest. The genesis of the concept of recusal of judges can be traced from the principle that implies fairness, reasonableness, equity, and equality i.e., Natural Justice. According to this principle, the judge must not have any interest in the subject matter of the case. When the judge learns that there is a conflict of interest, they must bow out from the case.

The doctrine of recusal

It is a basic precept that no one should be a judge in his or her case. Courts must keep the promise of dispensing fair and impartial justice and must decide controversies without bias. The practice of recusal i.e. when and how an individual Justice should be excluded from participating in a specific case, where he has some interest—has been a regular topic of passionate debate since the founding of the United States of America and the United Kingdom. Recusal is the “removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.” The doctrine of judicial recusal enables, and may require, a judge who has been, appointed to hear and determine a case to stand down from that case and leave the disposition of it to another colleague or colleagues. The judicial oath in England and Wales, widely echoed in the common law world, is to do justice ‘without fear or favour, affection or ill-will. Fear and favour are the enemies of independence, which is a state of being. Affection and ill-will undermine impartiality, which is a state of mind. But independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them. That makes the law relating to recusal a serious business.

The practice of recusal in India

In India, there is no statute laying down the minimum procedure that judges must follow to ensure impartiality. However, courts have always insisted that judges and other adjudicatory authorities must ensure that they have ensured principles of impartiality. The principles of Natural Justice have developed with the growth of civilization and the content thereof is often considered a proper measure of the level of civilization and Rule of Law prevailing in the community. To protect himself against the excesses of organized power, man has always appealed to someone beyond his creation. Such someone could only be God and His laws could only be divine law or natural law to which all temporal laws and actions must conform. This was the origin of the concept of natural justice. It implies fairness, reasonableness, equity, and equality. Though the Indian constitution does not use this expression, the concept divested of all its metaphysical and theological trappings pervades the whole scheme of the Constitution.  The duty to act fairly and impartially is ingrained in Articles 14 and 21 of the constitution. Indian courts have nourished these values concerning administrative decision-making and have emphasized the test of the ‘real likelihood of bias.’ What is relevant according to Supreme Court is the reasonableness of the apprehension in that regard in the mind of the party. Hence the proper approach in case of bias for the Court is not to look into his mind and ask “am I biased?” but to look into the mind of the party before it.

The reason was plain enough, writes Lord Denning, “Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: the judge was biased.” However, when it comes to applying these standards to judges of the constitutional courts, the law is not very clear. The Cases of recusal have come in the recent past; however, there is no set principle as to when and how this principle should be followed. In India two methods are normally practised, first; automatic recusal, and second; If no one objects, a judge may proceed with the matter.

Automatic Recusal: Justice S. B. Sinha, raising his concerns about the decline of judicial ethics advocated for an automatic recusal process in the judicial system. He was surprised when two senior judges of the Supreme Court decided on a case, that they had probed in their administrative capacity as judges of the Punjab High Court. His reaction was:

“We also fail to see as to why two senior Judges who had headed the Committee should have been made part of the Bench that decided the case “.

Justice Markandey Katju, followed the practice of automatic recusal when he withdrew his name from the Novartis case by saying that it would not be proper for him to deal with the appeal filed by Novartis. His withdrawal from the case was meant to preclude fears of bias in the MNC camp on account of an article he had written five years earlier against the liberal grant of pharma patents. Justice Vikramjit Sen and Justice A. R. Dave decided to recuse themselves from the proceedings of a dispute between Bharti Airtel, the Department of Telecom, and Reliance Communications relating to adding of new customers by Airtel in circles where it had failed to get 3G spectrum licenses. These two judges withdrew from the bench without assigning any reasons therefore.

Justice Dal veer Bhandari’s recusal from a bench was in response to a letter from the activists regarding his participation in at least two international conferences for judges organized by the US-based Intellectual Property Owners Association (IPOA), whose members include Novartis, among a host of pharmaceutical and IT giants. In their letter to the government, the activists alleged that “several statements in the paper could be held to conflict with the intent and letter of the Indian Patent Act”. They requested the government to take up the matter of recusal with Justice Bhandari “to avoid any room for questions to be raised once the judgment is given in light of the already expressed opinions on Intellectual Property in IPOA”. Without waiting for the government to react, Justice Bhandari withdrew from the case immediately after the letter of the activists had been reported in the Times of India.

If no one objects, the judge may proceed: If there is no objection raised by any side, the judge will decide the case. Few cases of this type came before the court. Two senior Judges of the Supreme Court, who had headed the Committee and decided the service matter in the capacity of the judge of the Punjab High Court, heard the case on the judicial side. The Punjab judges, with an appealing candor, asked lawyers appearing in the case if they had any objections. There were none. The judges heard the case. Justice S. H. Kapadia immaculately followed this practice. Disclosing the fact that he owns some shares in Vedanta, he frankly asked the lawyers appearing in the case whether he should recuse himself from hearing the case if the lawyers had any objections. Notable lawyers replied with all humility that he may proceed to hear the matter.

Without casting any aspersion on the judge, the fundamental question which arises here is: was this the right thing to do? Is it fair for a judge to ask lawyers whether he should recuse himself from a case? No lawyer can truthfully answer such a question either on his behalf or on behalf of a client. It is a question that the judge himself alone can answer. If he says the judge should recuse himself, there would be a mild accusation of bias? If he says the judge should continue to hear the matter, justice may not appear to be done even if there is no bias. Equally, no lawyer wants to lose favour with the judge.

Judicial pronouncements on recusal

India currently does not have any provisions governing this practice of recusal by judges. However, there have been instances where the courts have tried to take action and provide clarity when such recusal by judges can be accepted by the court. These actions by the court tried to provide that justice is served by following the basic principles of impartiality.

RECUSAL OF JUDGES

In the Central Bureau of Investigation case, 3 Judges recused themselves from hearing the case challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation. Moreover, In the Ayodhya- Ramajanma-Bhoomi case, Justice U.U. Lalit recused him from hearing the dispute over land in Ayodhya after being pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest.

Furthermore, in the Bhima Koregaon case, the recusal by several Supreme Court judges from hearing the appeal filed by rights activist Gautam Navlakha to quash the FIR against him. The Chief Justice of India Ranjan Gogoi had first recused himself from hearing the case, possibly over the paucity of time. Justice Bhat recused himself when the case came up before a bench led by Justice Arun Mishra. No reasons were cited for this. Justice Vineet Saran was the third judge on the bench. In order of seniority, the case travelled then to Justice NV Ramana. The entire bench headed by Justice Ramana recused itself from hearing the case.

REFUSAL TO RECUSE

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 controversially refused to recuse himself from a Constitution Bench set up to re-examine a judgment 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.[1]

During hearings in the National Judicial Appointments Commission case, there was a plea asking Justice Jagdish Singh Khehar, to recuse from hearing the case since he was a member of the Collegium. In a unanimous decision, SC rejected the plea. It said that a Judge may recuse on his own. But recusal at the asking of a litigating party, unless justified, must never be acceded to. That would give the impression that the Judge has been scared out of the case.

In the Assam Detention Centre Case, CJI Ranjan Gogoi also decided against recusing from hearing a PIL highlighting the “sub-human” living conditions of detenues in Assam’s detention centres. He told this plea had “enormous potential to damage the institution” and that the CJI’s recusal would mean the “destruction of the institution”. 

In another petition dealing with the Centre’s takeover of the International Centre for Alternative Dispute Resolution (ICADR), CJI Gogoi refused to recuse when requested by ICADR counsel to recuse from the bench since he was ex-officio chairman of the ICADR.

Guidelines of the supreme court on recusal

In Ranjit Thakur v. Union of India, Justice MN Venkatachalaiah affirmatively held, that ‘the proper approach for the Judge is not to look at his mind but to look at the mind of the party before him.’Moreover, In PK Ghosh v. JG Rajput, the Supreme Court said that: A basic postulate of the rule of law is that “justice should not only be done but it must also be seen to be done. If there is a reasonable basis for a litigant to expect that his matter should not be heard by a particular Judge and there is no absence of an alternative, it is appropriate that the learned Judge should recuse himself so that people do not doubt the process.

The loopholes

In India, there are no codified rules related to the recusal of judges which lay down even the minimum requirement or procedure for the determination of impartiality. It is upon the sole discretion and consciousness of the judge to decide on such matters. Sometimes, the parties involved can also raise a plea of bias and request recusal. There are various tests to determine bias. The prominent ones include the test of real likelihood of bias (reasonable apprehension of bias), a test of automatic disqualification, etc. The ground for recusal and the tests to determine the same are in complete sync.

The purpose of this article is to highlight the lacunas in the manner through which judicial recusal matters are decided in India. There is no fair and just procedure to decide these issues. The parties can raise their concerns against a judge and if the judge against whom such an allegation is made wishes to recuse, they may do so. The judge has complete and sole discretion in such matters. The issue is that at times such discretion is exercised according to the whims and fancies of the judge which maligns the name of the institution, as is evident from the recusal case of Justice Arun Mishra. In addition, some judges, to protect the faith of the people in the institution and to uphold its principles, recuse when the litigants allege bias. This gives birth to the practice of forum-shopping/bench hunting.

Conclusion

In India, reforms and a policy framework on the recusal of Judges are the need of the hour. The aforementioned suggestions can be worked upon. There are two significant reasons to back the suggestion to send the matter to the Chief Justice. Firstly, the judge against whom such allegations are made is the sole decision-maker in the matter that is in contravention with the principle of Nemo judex in causa sua. Therefore, a neutral arbiter is needed to decide such an issue. This practice of referring such cases to another judge is widely followed in various states of the USA. The House of Lords has held that the test to determine bias is to see whether the fair-minded and informed observer, having considered the facts, would determine that there was a real possibility that the tribunal was biased. The authors argue that such a fair-minded and informed observer cannot be the same person against whom allegations have been made. Such issues should be decided by a third person who, in the opinion of the authors, should be the Chief Justice of that court. Secondly, according to the cardinal principle of administrative law which denotes that the dismissal or removal of a person in service can only be done by the appointing authority and by no authority subordinate to it, i.e., the Chief Justice of the respective court. Thus, if the Chief Justice is the person in power for constituting benches, they should be the person to decide the recusal matters as well.

It can be argued that the judge against whom allegations are made is in the best position to decide the same. However, the object behind the law of recusal is not merely that the scales be held even; it is also that they may not appear to be inclined. The authors have framed their proposal keeping in mind the same. The authors propose that the said procedure should be enumerated under The Judges (Inquiry) Act, 1968 by insertion of a Part-II in the Act as it would ensure legislative backing, foster procedural fairness in the system, and assure that justice is served to all.

Article by Alaina Fatima.

[1] Leslie W Abramson, Deciding Recusal Motions: Who Judges the Judges, 28 Val. U. L. Rev., 543, 551 (1994).