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Whether The Judges Must Give Their Reasons In Writing For Recusing Themselves From Specific Cases?

Historically, Justices have refrained from offering their opinions on public figures and salient events to avoid the appearance of bias or prejudice on issues that could come before the Court (although at times they have offered glimpses). The perceived role of a Judge is that of a neutral arbiter, with no personal or financial stake in the outcome of any case, and when Judges and Justices make their personal opinions known, it can give the appearance of bias.

For most Judges in the United States, there are codes of conduct that regulate their behaviour to avoid situations where Judges impartially can be called into question, yet the Justices of the Supreme Court of the United States (also referred to by the acronym SCOTUS) are exempt from these conduct proscriptions. Although Supreme Court Justices are not required to recuse themselves from cases, they do so from time-to-time. Most frequently Justices recuse in situations when they were involved with a case before it came to the Supreme Court Of the United States, they have financial stake in one or more of the parties, or have a family tie that could give the appearance of impropriety or bias. That said, Justices such asJustice Scalia have shown willingness to engage in cases where they have a potential interest and a perceived conflict.

Motions to recuse or disqualify Judges and other adjudicators have been made for all sorts of reasons. Most commonly such motions are predicated upon a claim that the Judge is biased in favour of one party, or against another, or that a reasonable objective observer would think he might be.

But such motions are also made on many other grounds, including the challenged Judge’s:
# Interest in the subject matter, or relationship with someone who is interested in it;
# Background or experience, such as the judge’s prior work as a lawyer;
# Personal knowledge about the parties or the facts of the case;
# Ex parte communications with lawyers or non-lawyers;
# Rulings, comments or conduct;

In some jurisdictions the ability of a Judge to recuse himself is constrained by the so-called “duty to sit doctrine”.According to this doctrine, unless a Judge is required by law to disqualify himself he cannot simply choose to recuse himself, but must remain on the case.

In most American jurisdictions a Judge may only be disqualified “for cause.”In other words, a person who would like a new Judge to preside over her case is required to show either that a basis for disqualification exists that is expressly enumerated in A disqualification statute; or that, for some other reason, a reasonable person would question the Judge’s ability to be impartial in the case.But many (mostly western and mid-western) jurisdictions have laws on the books which authorize parties to seek disqualification on a “peremptory” basis, without making any showing of cause.This is referred to as “peremptory disqualification,” or making a “peremptory challenge” .In such jurisdictions, as long as the challenge is timely filed, and the prescribed procedure is complied with, the Judge has no discretion to determine whether he should recuse himself; rather, he is disqualified automatically.

Constitution of India has created a Democratic Republic and a trinity of instrumentalities to enforce its paramount provisions without fear or favour, affection or ill-will. Judges, vested with considerable power, are oath-bound by Constitution of India to decide within the prescriptions and proscription of Law, without violating jural parameters and performing with exemplary good behaviour. A Judge is an elected or appointed official who conducts court proceedings. Judges must be impartial and strive to properly interpret the meaning, significance, and implications of the law. Judges must also recognize that justice means more than just interpreting the law- they must also show compassion and understanding for the people on both sides of the case.

A Judge, while assuming office, takes an oath as prescribed under Schedule III to the Constitution of India, that:
".... I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws,"

While having taken oath, as referred hereinabove, a Judge is always expected to discharge his duties without fear or favour, affection or ill will. It is only desirable, if not proper, that a Judge, for any unavoidable reason like some pecuniary interest, affinity or adversity with the parties in the case, direct or indirect interest in the outcome of the litigation family directly involved in litigation on the same issue elsewhere, the Judge being aware that he or someone in his immediate family has an interest, financial or otherwise that could have a substantial bearing as a consequence of the decision in the litigation, etc. to recuse himself from the adjudication of a particular matter

It would be profitable to take note of judgment rendered by Hon'ble Supreme Court of India in "P.D. Dinakaran (I) Vs Judges Inquiry Committee & Anr.", (2011)8 SCC 380, held as under:
"42. A pecuniary (bias) interest, however small it may be, disqualifies a person from acting as a Judge. Other types of bias, however, do not stand on the same footing and the Courts have, from time to time, evolved different rules for deciding whether personal or official bias or bias as to subject matter or judicial obstinacy would vitiate the ultimate action/order/decision."

When must aJudge disqualify himself/herself from hearing a case? Must decisions of this gravity be left to the wisdom of individual Judges? Under what circumstances does a decision of recusal transgress a Judge’s general responsibility to sit and deliver impartial justice? Should not a Judge who disqualifies himself/herself be compelled to deliver an order explaining his/her reasons for recusal?

Cases in hand
These questions have been brought to sharp focus with a rash of recusals made by Judges of the Supreme Court over the course of the last few weeks. In one case alone - challenging the appointment of M. Nageswara Rao as interim Director of the Central Bureau of Investigation - three Judges recused themselves. FirstChief Justice Ranjan Gogoi disqualified himself, purportedly because he was set to be a part of the Selection Committee tasked with choosing a new CBI Director. He then assigned a bench presided by Justice A. K. Sikri to hear the case. ButJustice Sikri too recused himself, on grounds, one assumes, that he was part of a panel that removed the previous CBI Director Alok Verma from his post. Next,Justice N. V Ramana recusedhimself for apparently personal reasons. “Nageswara Rao is from my home State and I have attended his daughter’s wedding,” he told the Petitioner’s Counsel. However, none of these orders of recusals was made in writing, and, by themselves, the professed oral reasons for the decisions do not quite point to why the Judges ought to have thought themselves incapacitated.

The recusals in the CBI case weren’t the only ones to make the news. Last month Justice U. U. Lalit recused himself from hearing the dispute over land in Ayodhaafter Senior Advocate Rajeev Dhavan pointed out that the Judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest. Although Mr. Rajeev Dhavan said he had no specific objection to Justice U. U. Lalit continuing to hear the case, the Judge, the court’s order notes, “expressed his disinclination to participate in the hearing any further.” But because we don’t have a written order specifically justifying the recusal, it’s difficult to tell whether the disqualification was really required.

In taking Oath of Office, Judges, both of the Supreme Court & of the High Courts, promise to perform their duties, to deliver justice, “without fear or favour, affection or ill-will”. While “fear and favour”, as Stephen Sedley, a former Judge of the Court of Appeal of England and Wales, has written, are “enemies of independence, which is a state of being”, affection and ill-will “undermine impartiality, which is a state of mind”. The purpose of recusal, Mr. Stephen Sedley added, is to underpin these twin pillars of independence and impartiality. A decision, therefore, on a demand for a Judge’s disqualification is an especially solemn one. A gratuitous recusal, much like a failure to recuse when faced with genuine conflicts of interest, traduces the Rule of Law. To withdraw from a case merely because a party suggests that a Judge does so impairs judicial fairness. It allows parties to cherry-pick a bench of their choice.

Formulating rules
Given these implications, one can be forgiven for thinking there exists a set of concrete rules that tell us when a Judge must recuse himself/herself. But as T. R. Andhyarujina wrote some years ago, what we really have are different elucidations of a principle against an apprehension of bias. No doubt, in some cases, prejudice is presumed - for example, where a Judge has appeared for one of the litigants at some stage in the same dispute. It’s also by now an axiomatic rule that no person should be a Judge in his/her own cause. But there are cases where somebody else’s cause becomes the Judge’s own.

In disputes where a Judge has a financial interest in the litigation, where a Judge owns shares in a company, which is party to the case, the fact of owning shares is, in and of itself, considered a disqualification. This rule is derived from an 1852 House of Lords judgment, which held that Lord Cottenham ought not to have delivered a verdict in a case where he owned shares in one of the parties to the litigation. The tenet here appears clear enough, but it’s today muddled by the ubiquity of shareholdings by Judges and Judges’ relatives - Mr. Stephen Sedley cites the example of a 1980 appeal against Shell and BP in which “the registrar of civil appeals was unable to assemble three Judges who had no shares in either defendant.” Invariably, therefore, when a Judge owns shares in one of the litigants what we expect is disclosure of the fact, and if neither party objects one might think it’s acceptable for the Judge to hear the case. But in the absence of a well-defined rule that helps establish a basic standard, a decision of this kind can prove troubling somewhere down the line.

The closest we’ve come in India to carving out a definite rule was a formulation made by Justice J. Chelameswar in his opinion inSupreme Court Advocates-on-Record Association v. Union of India(2015). Here, the 99th constitutional amendment was challenged, and a claim was made seeking Justice J. S. Khehar’s recusal. The plea was rejected, but Justice Chelameswar attempted to establish something akin to an elementary canon. “Where a Judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken,” he wrote. “But in other cases, such an inquiry is required, and the relevant test is the ‘real danger’ test.”

Even with this formulation, what constitutes real danger of bias remains a matter of construal. And whether an individual Judge should be allowed to decide for himself/herself on pleas of recusal is equally a point of contention. Yet the test does provide a plausible solution, so long as Judges make their choices by reducing their reasons to writing. For when Judges choose without a rational motive, without expressing their decisions in writing, they hurt the very idea of judicial rectitude.

The Hon'ble Supreme Court of India in Supreme Court Advocates-on-Record Association & Anr. Vs Union of India, (2016) 5 SCC 808, laid down certain guidelines, relevant portions whereof reads as under;
"10. It is one of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge.

11. It all started with a latin maxim Nemo Judex in Re Sua which means literally - that no man shall be a judge in his own cause. There is another rule which requires a Judge to be impartial. The theoretical basis is explained by Thomas Hobbes in his Eleventh Law of Nature. He said: "If a man be trusted to judge between man and man, it is a precept of the law of Nature that he deal equally between them. For without that, the controversies of men cannot be determined but bywar. He therefore, said that is partial in judgment doth what in him lies, to deter men from the use of judges and arbitrators; and consequently, against the fundamental law of Nature, is the cause of war."

Grant Hammond, a former Judge of the Court of Appeal of New Zealand and an academician, in his book titled "Judicial Recusal" (R.Grant Hammond, Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009) traced out principles on the law of recusal as developed in England in the following words:
"The central feature of the early English common law on recusal was both simple and highly constrained: a Judge could only be disqualified for a direct pecuniary interest. What would today be termed 'bias', which is easily the most controversial ground for disqualification, was entirely rejected as a ground for recusal of Judges, although it was not completely dismissed in relation to jurors.

This was in marked contrast to the relatively sophisticated canon law, which provided for recusal if a judge was suspected of partiality because of consanguinity, affinity, friendship or enmity with a party, or because of his subordinate status towards a party or because he was or had been a party's advocate."

The simple question is, whether the adjudication by the Judge concerned, would cause a reasonable doubt in the mind of a reasonably informed litigant and fair-minded public as to his impartiality. Being an institution whose hallmark is transparency, it is only proper that the Judge discharging high and noble duties, at least broadly indicate the reasons for recusing from the case so that the litigants or the well- meaning public may not entertain anymisunderstanding that the recusal was for altogether irrelevant reasons like the cases being very old, involving detailed consideration, decision on several questions of law, a situation where the Judge is not happy with the roster, a Judge getting unduly sensitive about the public perception of his image, Judge wanting not to cause displeasure to anybody, Judge always wanting not to decide any sensitive or controversial issues, etc. Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal. To put it differently, it is part of his duty to be accountable to the Constitution by upholding it without fear or favour, affection or ill- will. Therefore, I am of the view that 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. This would help to curb the tendency for forum shopping.

Equally destructive
Ultimately, a mistaken case of recusal can prove just as destructive to Rule of Law as those cases where a Judge refuses a recusal despite the existence of bias. We must n’t allow recusals to be used as a tool to manoeuvre justice, as a means to picking benches of a party’s choice, and as an instrument to evade judicial work. As the Constitutional Court of South Africa held, in 1999, “the nature of the judicial function involves the performance of difficult and at times unpleasant tasks,” and to that end Judicial Officers “must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all Judicial Officers. If they deviate, the independence of the Judiciary would be undermined, and in turn, the Constitution itself.”

Author by: Dinesh Singh Chauhan, Advocate - High Court of Judicature,
Email Id: [email protected], [email protected] 

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