Recusal is the “removal of oneself as a policymaker or judge in a matter, especially because of some conflict of interest. “The duty to act impartially and fairly is ingrained in Article14 and Article 21 of the constitution of India. The 1999 charter ‘Restatement of Values in 78 talks about the recusal of judges. However there are no formal rules in place regarding the recording of the reason for recusal. There are as such no written rules regarding the recusal of judges from hearing the cases listed before them in constitutional courts. Recusal from a case is the discretion of a judge.
The reasons for the recusal of a judge does not have to be disclosed in an order of the court. The judge might orally convey their reasons for recusal to the lawyers involved in the case but in many cases they do not. Sometimes they explain the reasons in the order . At times, parties who are involved may raise apprehensions about a possible conflict of interest.
TYPES OF RECUSAL
- Automatic Recusal: In automatic recusal a judge himself withdraws himself from the case.
- The second type of recusal is where one of the parties raises an objection on the fairness of the judge due to his interest in the case or some personal bias. In this case the parties may request of recusal of the judge.
REASONS FOR RECUSAL
If there is a situation where there is some conflict of interests a judge can withdraw from hearing a case.
The conflict of interest can be
- from holding shares in a company that is a litigant
- when the judge has some personal association with a party that is involved in the case
- when he has some experience in relation to the matter at hand as a lawyer. For eg. when he has appeared as a lawyer in the same matter for which he is sitting as a judge.
- When he has some personal knowledge about the case or parties before him
- When there has been some ex parte communication with the lawyers or parties.
- When he has previously given a ruling in the same case.
The recusal of judges is based on the cardinal principle of due process of law which means that nobody can be a judge in their own case. Generally the decision of the recusal of judge comes from the judge himself. However it can be brought up by parties or lawyers in the case before the judge. Judges can refuse to recuse also. The power of recusal is vested in the judge and he cannot be forced to recuse himself from a case. A judge is not asked to specify a reason for doing this and he is also not expected to disclose the reason for him deciding to recuse himself from a specific case by a judicial order. The judges have been given independence in this regard.
The Apex Court in the case of Ranjit Thakur v Union of India (1987),had stated that the test of the likelihood of bias is the reasonableness of the apprehension in the mind of the party and that ‘the proper approach for the Judge is not to look at his own mind but to look at the mind of the party before him.’
In the Ayodhya case it was pointed out that Justice U.U. Lalit had appeared for the former Uttar Pradesh Chief Minister Kalyan Singh in a related contest. So Justice U.U. Lalit recused himself from hearing the Ayodhya land dispute case.
In the Bhima Koregaon case several Supreme Court judges had recused themselves from hearing an appeal filed by the activist Gautam Navlakha to quash the FIR against him.
In the case of Supreme Court Advocates-on-Record Association & Anr v Union of India the question regarding interest and the impartiality of Justice Khehar was brought forward. It was held that it is a judge’s duty to hear every matter that is brought before him without any favour or fear. It was also said that a Judge should never recuse himself on the request of a litigating party unless there is a justified reason. The Pinochet principle was also touched upon in the case. This means that in cases where a Judge is interested in the cause that is being promoted by one of the parties, then he is automatically disqualified from hearing the case. Further it was stated that in case where there is some financial interest of Judge in the outcome of a case, he is also automatically disqualified from hearing the case
A reasonable apprehension of bias test has to be applied in the cases where the judge’s interest is other than the financial interest or where the Pinochet Principle cannot be applied and disqualification is not automatic.
In the recent case of Indore Development Authority v. Manohar Lal & Ors. the issue related recusal of judges was brought up. The party in this case asked Justice Arun Mishra for his recusal as he had earlier been on the bench for deciding the same case and he will be again sitting for deciding his own judgement.. The major elements of Justice Mishra’s ruling on his recusal. He said that it is for a judge’s decision whether he will recuse or not. It was stated that it is for the Judge to find out and to decide whether he would be able to deliver an impartial justice to a cause and he is not prejudiced by the law or a fact. A judge should be able to take an independent view and if the judge believes that he will be able to deliver justice impartially to the he must not recuse from any case as the duty assigned by the Constitution need to be performed as per the oath and also there lies a larger public interest.
It was further held that where a judge had rendered a judgement based on a question of law it would not be a bar his or her participation if that view is referred for reconsideration in a larger bench. This previous judgement would constitute bias or a pre-disposition .
It was also stated in the order that giving a party the right to seek recusal of a judge will lead to diluting the roster making power that has been vested with the Chief Justice and it is not for the Judges to choose once the Chief Justice has exercised his power. If requests for recusal are agreed to for the asking it would lead to litigants taking over the roster making powers of the Chief Justice and that would amount to interference with the judicial system. Thus the Court has sought to impose on the Judges to not recuse, except in cases where they feel they cannot deliver justice in the matter. Thus based on this Justice Arun Mishra was not recused. In2015 while holding that the National Judicial Appointments Commission (NJAC) as unconstitutional Justice Madan Lokur and Justice Kurian Joseph had said that there is a need for the judges to give the reasons for recusal in order to build transparency.
As there are no formal rules or guidelines governing recusal there is a lack of transparency. As Justice Kurian Joseph has rightly highlighted in the NJAC case that there is a need to build transparency and for that judges should give reasons for recusal. A judge has the duty to be accountable and transparent and thus a judge should be required to give reasons for his recusal from a particular case. Proper rules should also be formulated to make the procedure more transparent.
- Explained: Recusals by Judges, https://www.civilsdaily.com/news/explained-recusals-of-judges/
- Explained: How judges recuse from cases, and why, by Apurva Vishwanathhttps://indianexpress.com/article/explained/how-judges-recuse-from-cases-and-why-7371106/
- Indore Development Authority v. Manohar Lal & Ors. S.L.P. (C) NOS.9036-9038 OF 2016)
- M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors. (Ayodhya Case)
- Ranjit Thakur v Union of India
- Supreme Court Advocates-on-Record Association & Anr v Union of India (2016) 5 SCC 808