Recusal by Judges - an overview
"Independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them."
Indian judiciary is one of the most powerful and proactive ones in the world. There are highly experienced judges in Supreme Court and High Courts of the states in India. The Constitution vests power and some immunity in the judges. Fairness and impartiality are the fundamental qualities to be possessed by a judge. The principle of judicial independence is designed to protect the judicial system and the rule of law as well as to maintain public trust and confidence in the courts.
If, due to certain reasons, it appears to the judge that he cannot deliver justice in an impartial manner, ethically he is supposed to recuse. The right to recuse is given to the discretion of the judges. Historically, the recusal of judges started as a trend 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. Since then recusal became a part of custom in common law jurisdictions.
It is statutorily given as the prerogative of the judge as to at what instance should a judge recuse himself or herself from hearing a case, but important question is as to 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. Another question emanating from this is as to whether the judges are accountable for explaining the reasons for recusal to the concerned parties? Is there a need for a defined code even for the judges and the essential features of that code to ensure a professional conduct on the matter of recusal?
However, 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 based on a probable existing bias, where judges are expected to recuse. The lawyers have 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.
In one of its landmark decisions, Supreme Court held that if a judge is shown to have a pecuniary interest in the outcome of a matter, 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. The extent of such an interest will need to be established.
In Ashok Kumar Yadav v. State of Haryana 1987 AIR 454, 1985 SCR Supl. (1) 657, Supreme Court tried to explain the reasons behind recusal. 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 “Not only must Justice be done; it must also be seen to be done”. In general, the Indian judiciary has followed this principle and even in case of recusal, the judiciary has recommended itself to follow this.
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 him or her, it is ultimately the prerogative of the judge and there is no way of redress in those cases where 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.
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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. Also the recusal causes high amount of uncertainty and judicial backlogs. In cases with political undertones, recusals are very common.
Coming 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. This is also followed by the judges of High Courts and the Supreme Court even though they are not statutorily bound by this section. Some scholars say that reasons for recusal must be hidden based on the doctrine of independence of judiciary.
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 himself/herself under speculation by the public.
It is high time there are some clear-cut guidelines for the judges to decide on recusal, as the judgments are not enough and the lack of an objective standard as well as the powers vested as judicial discretion is far too much for transparency.
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.
The judges should not recuse themselves from hearing cases without disclosing the grounds. This is because judges have a duty to provide transparency and accountability in their decision-making process. If a judge recuses themselves without disclosing the grounds, it can create suspicion and undermine the public's trust in the judicial system. Additionally, it can lead to a perception of bias or unfairness in the handling of cases. Therefore, judges should always disclose the reasons for recusal to ensure transparency and maintain public trust in the judicial system.