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Recusal of Judges in India: Need for More Regulations

Judiciary is the ultimate authority in ensuring justice in most of the liberal democracies and Indian judiciary is one of the most powerful and proactive ones in the world. The Supreme Court and High Courts of the states in India are filled with highly experienced judges who are appointed by the President of India, as the Constitution mandates.

The Constitution vests a lot of power and certain amount of immunity in judges. Fairness and impartiality are the fundamental qualities to be possessed by a judge. In India, for the vast majority of cases, there are no reports of having been heard by a partial and unfair judge but there are instances where the contrary happens.

Once it appears to the judge that he cannot deliver justice in an impartial manner, ethically he is expected to recuse. The right to recuse is given to the discretion of the judges. This trend of recusal of judges started from a case in 1852 where Lord Cottenham recused himself from the case of Dimes V Grand Junction Canal, because he possessed some of the shares in the company involved in the case.[1] Since then recusal became a part of custom in common law jurisdictions.

At what instance should a judge recuse himself or herself from hearing a case is statutorily given as the prerogative of the judge but the question that arises is whether such choices of significance be left to the prerogative of the individual judges. This question is followed by the pondering of circumstances where an act of recusal becomes a contravention to that judge’s legal responsibility and moral duty to hear a matter and deliver unprejudiced justice.

Also, are the judges accountable for explaining the reasons for recusal to the concerned parties?

Or is it possible to hold judges accountable while not hindering with the independence of judiciary. There is a lot of literature available on these binaries and rather than analysing these two perspectives and analysing them philosophically, I would focus on the Indian scenario with the help of events in the past which has led to the jurisprudence of recusal. The lacuna in this law triggers a lot of heated courtroom exchanges between the bar and the bench and in this paper I would argue for the need of a defined code even for the judges and the essential features of that code to ensure a professional conduct on the matter of recusal.

There is no specific legislation in India to direct a judge’s recusal. Even though there are no specific laws regarding the same, there has been customary practice. This is based on a probable existing bias, where judges are expected to recuse.

However, lawyers have unfairly taken advantage of this, by requesting judges to recuse themselves from cases if they feel that they are not going to receive a favourable verdict.[2] Even though Supreme Court of India has violated one of the guiding principles of law that no one can be a judge in his own case in many instances like forming a collegium for appointment of judges, there has been not much judgments on the issue of recusal. Indeed there has been a lot of heated courtroom exchanges but none of these ends up in records as these are open court statements made by the judges. In one of its landmark decisions, Supreme Court held that if a judge is shown to have a pecuniary concern in the result of a matter, then the judge has to be inevitably recused from hearing the matter.

However, in cases where the concern of the judge is something other than pecuniary, the recusal would not be mandatory. There should be an enquiry for analysing the extent of such an interest. Then judge can be disqualified after being subjected to either the principle of "real danger" or "reasonable apprehension".[3]

In one of the landmark cases, Ashok Kumar Yadav v. State of Haryana, the Supreme Court tried to explain the reasons behind recusal.[4] Rather than leaving it to the absolute discretion of the judges, the likelihood of bias was focused on. If there is a reasonable chance for the judge to be biased, the judge is supposed to recuse himself. This stems up from the principle laid down by Lord Hewart CJ in the case of R v Sussex Justices, ex parte McCarthy “Not only must Justice be done; it must also be seen to be done”.[5] In general, the Indian judiciary has followed this principle and even in case of recusal, the judiciary has recommended itself to follow this.

In a very recent case, Chief Justice of India [hereinafter referred to as the CJI], Ranjan Gogoi, was approached with a request to recuse himself from the hearing of a case regarding the release of over nine hundred prisoners who were considered to be foreigners and who have spent a lot of time in preventive detention under inhumane circumstances in holding cells of the state of Assam.[6]

CJI made certain comments during the progress of previous hearings and the petitioner felt that CJI had some preconceived notions regarding the matter and had already made up his mind as to what would be the outcome. Any party to the case can feel that the judge is biased but for this feeling to be considered relevant, the test of reasonability has to be applied to the current scenario.

The CJI stated “A judge says a lot of things to test the waters...What was said in a healthy debate was understood by you as an opinion. The opinion is in the order. You are quoting from sentences exchanged in the debate...the main matter is pending before this court. How can you say the court has decided the matter? That the CJI has prejudged? Is this fair? You want to serve the country, is this how you serve the country?”
That is why you shouldn't become a lawyer yourself.

This is why we don't allow laypeople to get into the intricacies of proceedings...Learn to Trust your judges! The day you don't trust your judges, you've had it!"

These are some excerpts from the conversations which happened between the bench and the petitioner who was representing himself. The CJI reiterated that whether a judge has to recuse is the judge’s own prerogative and not of that of the litigant’s. Analysing the CJI’s comments and rhetoric of the necessity of being a lawyer to argue and his comments regarding the matter is reasonable enough to presume that the CJI had some prejudice regarding the matter. Also, in a bizarre manner, the bench presided by the CJI penalized the petitioner for requesting the recusal and removed the petitioner from being a signatory to the petition. Furthermore, the bench went on to appoint the senior lawyer who had been discharged by the petitioner, as amicus curiae in the matter.

Another deeply problematic issue is the demand of CJI for ‘trusting the Judges’. It seems as if the apex court is oblivious to the notion of a judge is remotely himself on trial when he is judging a matter where he is interested. This principle of open justice exists principally due to the fact that we are a democratic polity and there should not be a necessity of ‘trusting the judges’.

The judges are to be scrutinized prudently when they are hearing a matter, and their conduct has to be analysed. The CJI was also unhappy about the petitioner, who was not present in court, relying upon certain media reports on the courtroom exchanges while the hearing was ongoing. When the petitioner relied on news reports by the reporters from the Supreme Court, the CJI was not impressed and he presumed that the petitioner was ignorant about the working of the Supreme Court. According to the CJI, the oral observations made by a Judge cannot be used as a valid apprehension of bias but the CJI did not clarify as to why oral observations should not be used.

The legal fraternity has criticized this order and the Commonwealth Human Rights Initiative has also criticized these statements. These include the eminent jurists like the retired Supreme Court judge Madan Lokur, Wajahat Habibullah, a former Chief Information Commissioner who is the chairperson of Commonwealth Human Rights Initiative and the former Chief Justice of the Delhi High Court, Justice A. P. Shah.[7]

From the above case, we can see the amount of discretion left for the judge in relation to recusal, even if there are allegations against her, it is ultimately the prerogative of the judge and there is no way of redressing in cases where the petitioner feels that the judge is biased. In the case of lower courts there is a scope for appeal in case of a biased judgment but if it comes to Supreme Court, it becomes a matter of convincing a judge how that judge is biased. There are various examples where a judge has refused to recuse from hearing and ultimately ended up giving predictable verdicts like the infamous Judge Loya case where Justice Dhananjaya Y. Chandrachud was repeatedly requested to recuse as accused in that petition were sitting judges of Bombay High Court which was Justice Chandrachud’s parent High Court.[8]

However, he refused to recuse from the matter and those judges were given favourable verdicts and even those lawyers who requested the recusal were all threatened with contempt of court by the judge. There are many instances of judges refusing to recuse from cases where they are reasonably presumed to have pecuniary interest like the Justice Kapadia issue in the case of Vedanta, a conflict of interest allegation made against him by senior lawyer Prashant Bhushan.[9] Justice Kapadia remained in the bench as opposed to the general norm where he should have ideally recused himself.

Recusal can also lead to instances where cases get dragged causing delay in justice delivery. This is the flip side of judges using their discretion to recuse from the case and not doing their judicial duty. There are a lot of examples from the Indian judiciary. In case of the alleged sexual harassment raised against CJI, Justice NV Ramana of the Supreme Court Has recused from the bench instituted for an in-house enquiry.[10] Justice Ramana’s reasoning was that the CJI was a close friend his and is treated like a family member by him.

This reasoning might sound justifiable as there is high possibility for a judge to give a favourable verdict in favour his fellow judge but the Supreme Court is filled with judges who have known each other for some period of time and the solidarity they show for one another in terms of such allegations makes it harder for an unbiased Supreme Court monitored enquiry. Justice Ramana also recused from hearing the petition challenging the appointment of an interim CBI director, M Nagaeshwara Rao citing his visit to Mr Rao’s daughter’s wedding.[11] It is very probable that even the highly ranked bureaucrats, judges, politicians and even celebrities would have met each other at a gathering or a public function or even private functions. This should not be considered significant enough to count as a reason to recuse from the judicial duty which a judge is supposed to do.

Also the recusal causes high amount of uncertainty and judicial backlogs. In Tripura High Court, which has a total of three judges including the Chief justice, it became materially impossible to establish a division bench for hearing appeals on the orders of a single Judge.[12] Also, when one of the other two Judges decide to recuse from hearing it makes it very difficult for administering speedy justice. This causes a lot of administrative issues pertaining to the judges and there are no solutions offered.

In cases with political undertones, recusals are very common. When the former Chief Minister of Tamil Nadu was under trial, the Supreme Court transferred the hearing to Karnataka high Court upon the recommendation of the bar as well as the collegium of Tamil Nadu High Court.[13] Similarly, in the state of Kerala, four judges of the High Court recused themselves in quick succession and refused to hear the SNC Lavalin case where the, current Kerala Chief Minister, Pinarayi Vijayan was accused.

[14] Those judges who recused received the flak of political opponents of Mr. Vijayan. VR Krishna Iyer, retired Supreme Court judge and probably the best jurist India has ever produced, considered this act of recusal as a breach of the solemn responsibility vested in the Judges by the constitution and even demanded the impeachment of these judges by the President.[15] In the case of Sanjay Kumar Srivastava v. Acting Chief Justice, it was held that not only were the judges not really permitted to cherry-pick whatever subject matter jurisdiction they preferred, they were also not given any options to hear whatever case they would want to hear, since the mechanism of the judiciary would have buckled and the judicial functioning could have come to an end by a cohort of inner tiffs on account of yearning for a specific subject matter jurisdiction or a specific case.[16]

When it comes to statute, Section 479 of The Code of Criminal Procedure, 1973, states as follows:-
Case in which Judge or Magistrate is personally interested. No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

This section is inspired from one of the principles of natural justice, Nemo judex in causa sua which means no one should be a judge in his own case.[17] This is also followed by the judges of High Courts and the Supreme Court even though they are not statutorily bound by this section. In 1972, the American Bar Association drafted a Code of judicial conduct and it is applied throughout the US.[18] In that code of judicial conduct, it is said that the personal relationship, pecuniary interests and ideological bias have to be analysed before the judge decides to recuse. Similarly, in India also, we have exhaustive judgments explaining as to what the reasons of recusals must be. However, the obedience to such laws are circumvented by the judges just by using the principle of judicial discretion. In India, as we have seen, judicial discretion is used by the judges very liberally and the reasons for recusal are not given in writing to the parties.

Some scholars say that reasons for recusal must be hidden based on the doctrine of independence of judiciary. This doctrine has also been used by the judges to not come under the ambit of RTI or disclose their assets.[19] Some judges use this of judiciary for not disclosing the reasons for recusal as well. The professional ethics behind recusal of a judge has to do with the opacity about the reasons as to which the recusal has happened. Since India is a liberal democracy, the citizens can expect accountability from public servants. By not giving reasons to recusal the judge is putting herself under speculation by the public, The moment it is made oblivious to public, there arises a chance for presuming the worst even if there is a noble reason to recuse.

On the contrary, if a judge finds out that his brother/ sister judge recused for a specific reason, there could be an inclination from the new judge to give a favourable verdict for the party in whose favour the other judge recused.

It is high time there are some guidelines to direct the judges for recusal as the judgments are not enough and the lack of an objective standard as well as the powers vested as judicial discretion is way too much for transparency. It is evident from the past that judiciary wants to vest in itself a lot of own decision making powers regarding its affairs and tends to remove the executive from making decisions for judiciary like the scrapping of National Judicial Appointments Commission or setting up the collegium system by judgments.[20]

However, recusal is not an instance where the judiciary is under threat as the aggrieved party would like to know why a judge has recused. There are some Bills pending in the parliament regarding this, but nothing fruitful has been done so far.[21] If the parliamentary process fails, this can be used as an opportunity by the judiciary for a self-reflection, as it has done before. Even if that fails, there could be measures like High Court Judges being appointed to a different state from where they practised as lawyers and English as the medium of communication would be of help. Expecting the High Court lawyers and Judges to understand and speak English is not an irrational expectation. The judges who were earlier a part of the bar would not be under pressure to ensure that they keep the senior lawyers happy.

Bar Councils and other associations are vested with enough powers to ensure that Judges give the reasons for recusal as a matter of mandatory requirement. It is the duty of Bar to ensure their client knows why the judge recused from their specific matter. There has to be a requirement of statutory obligation on the judges to inform the litigants as to why there is a decision to recuse from hearing. Recusal should be used sparingly like the emergency provision in the Indian Constitution.

[1] (1852) 3 HL Cas 759
[2] Olowofoyeku, Abimbola A. “REGULATING SUPREME COURT RECUSALS.” Singapore Journal of Legal Studies, 2006, pp. 60–85.
[3] (2002) 3 SCC 343
[4] 1987 AIR 454
[5] [1923] All ER Rep 233
[14] 2006 (4) KLT 749
[16] Writ Petition No. 2332 of 1993, Allahabad High Court
[17] A Dictionary of Law Enforcement (2 ed.) Graham Gooch and Michael Williams
Publisher: Oxford University Press Published online: 2015 Current Online Version: 2015 eISBN: 9780191758256

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