Introduction:
Being a judge is one of the noblest professions in the world. The meaning of Recusal is “removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest or biasness.[1]” As per the Restatement of Values of Judicial Life adopted by the Supreme Court categorically states, “A Judge shall not hear and decide a matter in a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised[2].” So, if a judge doesn’t have any past connection with the case the judge can handle the case. The basic principle of judicial conduct: In taking the oath of office, judges, both of the Supreme Court and the high courts, promise to perform their duties, to deliver justice, “without fear or favor, affection or ill-will[3]”.
When there is fear or favor, affection or Ill will come as an obstacle to serve justice than its judges themselves decision to recusal from the case. For a long time, it has been a practice in the Supreme Court that in serious issues like inter-state water disputes; judges from the state concerned do not sit on the bench to decide them. The right to recuse is given to the discretion of the judges.
Previous Cases of Recusals
- Central Bureau of Investigation case[4]: In this case, three judges recuse themselves from the case. The Justice NV Ramana, Chief Justice Ranjan Gogoi and Justice AK Sikri had recused themselves from the hearing. Justice Ramana said that “Nageswara Rao is from my home state and I have attended his daughter’s wedding.”
- Ayodhya case[5]: In this case U.U. Lalit recused himself when he pointed out that former Uttar Pradesh Chief Minister Kalyan Singh was a related in the contest.
- Bhima Koregaon’s case[6]: the Chief Justice of India Ranjan Gogoi had first recused himself from hearing the case, possibly over the paucity of time. After that 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 traveled then to Justice NV Ramana. The entire bench headed by Justice Ramana recused itself from hearing the case.
Previous Cases of Judges Refusing to Recuse
- Assam detention center case[7]: CJI Ranjan Gogoi also decided against recusing from hearing a PIL highlighting the “sub-human” living conditions of detenues in Assam’s detention centers. He told this plea had “enormous potential to damage the institution” and that the CJI’s recusal would mean the “destruction of the institution”.
- International Centre for Alternative Dispute Resolution (ICADR) case[8]: 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.
- National Judicial Appointments Commission case[9]: 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.
Guidelines on the Issue
- In Ranjit Thakur v. Union of India[10], 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.’
- In PK Ghosh v. JG Rajput[11], in this case, 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 be 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.
- Section 479 of The Code of Criminal Procedure, 1973, states that ‘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’.
- What would happen if all the judges of the Supreme Court decision to recuse from a matter?
As per Article 128 of the Constitution, the Chief Justice, with the consent of the President, can appoint a retired judge of the Supreme Court or a High Court to sit in and act as a judge. Unlike Article 127, this allows the Chief Justice to appoint a High Court judge as an ad hoc judge when there is no quorum in the Supreme Court, Article 128 does not talk about the necessity of quorum. Such an appointment is need-based.
Conclusion
The lawyer usually does not object a judges hearing a matter. But lawyers can do request for the judge or the bench not to hear the matter. Some judges recuse themselves if they feel there is a case for doing so. When a judge recuses himself, he should state the reason behind it. If no justification of recusal is given. It becomes difficult to tell whether recusal was required or not. Withdrawing from a case merely on a party’s request allows parties to cherry-pick a bench of their choice. Also, the recusal causes the backlog of cases and delay in serving justice. Hence, 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.
References:
[1] Black’s Law Dictionary, 1303 (8th ed. 2004).
[2] India, V. A. P. B. N. (2009, November 11). Restatement of Values of Judicial Life (1999) – CODE OF JUDICIAL ETHICS. Retrieved June 9, 2020, from https://indialawyers.wordpress.com/2009/11/12/restatement-of-values-of-judicial-life-1999-code-of-judicial-ethics/
[3] https://cag.gov.in/content/third-schedule
[4] Correspondent, H. T. (2019, January 31). ‘Went to his daughter’s wedding’: Judge Ramana recuses from hearing interim CBI chief case. Retrieved June 8, 2020, from https://www.hindustantimes.com/india-news/justice-nv-ramana-recues-from-hearing-on-m-nageswara-rao-s-appointment-as-interim-cbi-director/story-pKEAjTOS7mgL5IsCTvervN.html
[5] Rajagopal, K. (2019, January 10). Ayodhya title suit appeals: Justice U.U. Lalit recuses himself, Bench to fix time of hearings on Jan. 29. Retrieved June 8, 2020, from https://www.thehindu.com/news/national/ayodhya-title-suit-justice-uu-lalit-recuses-himself-from-hearing-case-posted-to-jan-29/article25957523.ece
[6] Rautray, S. (2019, October 4). Navlakha case: Fifth Supreme Court judge recuses self. Retrieved June 7, 2020, from https://economictimes.indiatimes.com/news/politics-and-nation/koregaon-bhima-case-justice-bhat-recuses-himself-from-hearing-navlakhas-plea/articleshow/71419301.cms#:%7E:text=Navlakha%20case%3A%20Fifth%20Supreme%20Court%20judge%20recuses%20self,-Gautam%20Navlakha%20had&text=The%20case%20relates%20to%20the,Koregaon%20during%20a%20Dalit%20function.&text=Justice%20Vineet%20Saran%20was%20the,possibly%20over%20paucity%20of%20time.
[7] Rajagopal, K. (2019b, May 2). SC throws out plea seeking recusal of CJI from Assam detention centres case. Retrieved June 7, 2020, from https://www.thehindu.com/news/national/sc-throws-out-plea-seeking-recusal-of-cji-from-assam-detention-centres-case/article27013235.ece#:%7E:text=Chief%20Justice%20of%20India%20(CJI,Mr.
[8] Detailed Analysis of the issue of Recusal of Judges I What is recusal? (2019, October 18). Retrieved June 8, 2020, from https://www.jatinverma.org/detailed-analysis-of-the-issue-of-recusal-of-judges
[9] Detailed Analysis of the issue of Recusal of Judges I What is recusal? (2019, October 18). Retrieved June 8, 2020, from https://www.jatinverma.org/detailed-analysis-of-the-issue-of-recusal-of-judges
[10] 1987 AIR 2386
[11] 1996 AIR 513
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