Recusal of Judges: Reasons and Process

What’s in today’s article?

• Why in news?
• What is Recusal of Judges?
• Reasons for recusal
• The process for recusal
• Few notable SC judgements on the issue
• Can a judge refuse to recuse?
• Judges record reasons for recusal
• Concerns surrounding recusal of judges

Why in news?

• Recently, Supreme Court judge Justice MR Shah refused to recuse from hearing a plea by former Gujarat-cadre IPS officer Sanjiv Bhatt.
• Earlier, Justice CT Ravikumar, had recused himself from hearing a batch of appeals against the discharge of Kerala Chief Minister Pinarayi Vijayan in the SNC-Lavalin corruption case.
  • The reason for his recusal was that he had been involved in a related matter as a judge in the Kerala High Court.
• These incidents have brought back the focus on the issue of recusal of judges.

What is Recusal of Judges?

• About
• Recusal is removal of oneself as a Judge or policymaker in a particular matter, especially because of a conflict of interest.
• The doctrine of judicial recusal requires a Judge, who has been appointed to hear and determine a case, to stand down from that case.
• Principle behind it
  • The practice stems from the cardinal principle of due process of law — nemo judex in sua causa, that is, no person shall be a judge in his own case. 
  • Another principle guiding judicial recusals is ‘justice must not only be done but must also be seen to be done’.

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Reasons for recusal

• When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception of biasness while deciding the case.
• The conflict of interest can be in many ways:
  • holding shares in a company that is a litigant; 
  • having a prior or personal association with a party involved in the case.
• Another instance for recusal is when an appeal is filed in the SC against a judgement of a HC that may have been delivered by the SC judge when he/she was in the HC.

The process for recusal

• The decision to recuse generally comes from the judge himself as it rests on the conscience and discretion of the judge to disclose any potential conflict of interest.
• In some circumstances, lawyers or parties in the case bring it up before the judge.
• There are no formal rules governing recusals, although several Supreme Court judgments have dealt with the issue.
  • The basic principle of judicial conduct is in taking the oath of office, Judges, both of the Supreme Court and of the High Courts.
    • Judges promise to perform their duties, to deliver justice, without fear or favor, affection or ill-will.

Few notable SC judgements on the issue

• In Ranjit Thakur v Union of India, the SC held that the tests of the likelihood of bias is the reasonableness of the apprehension in the mind of the party.
  • Judges should look at the mind of the party before him rather than asking himself about the biasness.
• In Supreme Court Advocates-on-Record Association v. Union of India, Justice Chelameswar held that: 
  • 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.

Can a judge refuse to recuse?

• Once a request is made for recusal, the decision to recuse or not rests with the judge.
• There have also been several cases where judges have refused to withdraw from a case.
  • For instance, in 2019, Justice Arun Mishra had refused to recuse himself from a Constitution Bench set up to re-examine a judgement he had delivered previously.

Judges record reasons for recusal

• Since there are no formal rules governing the process, it is often left to individual judges to record reasons for recusal. 
• Some judges disclose the reasons in open court; in some cases, the reasons are apparent.

Concerns surrounding recusal of judges

• Threat to Judicial Independence
  • Litigants often try to use this tool as to cherry-pick a bench of their choice. This might affect judicial fairness and hence independence. 
  • Judicial functions, sometimes, require asking questions and soliciting answers to arrive at a just and fair decision. 
  • If the assertions of bias are to be accepted, it would become impossible for a Judge to seek clarifications and answers.
• Delay in justice delivery
  • Recusal may cause obstruction and delay the proceedings of the Courts.
• No fixed rule for recusal
  • There are no rules to determine when the judges could recuse themselves.
  • Hence, there are different interpretations of the same situation.
  • E.g., In the Ayodhya-Ramjanmabhoomi case, Justice U U Lalit recused himself from the Constitution Bench.
    • This was after the litigants brought to his attention that he had appeared as a lawyer in a criminal case relating to the case.
  • On the other hand, in 2019, Justice Arun Mishra had refused to recuse himself from a Constitution Bench set up to re-examine a judgement he had delivered previously.

Q1) What is nemo judex in sua causa?

“Nemo judex in sua causa” is a Latin phrase that translates to “no one should be a judge in their own case” in English. It is a fundamental principle of natural justice and a cornerstone of the legal system in many jurisdictions.

Q2) What does independence of Judiciary mean?

The independence of the judiciary refers to the principle that the judiciary, as a separate and distinct branch of government, should be free from undue influence or interference from the executive and legislative branches. It is a fundamental concept in democratic societies and a crucial element of the rule of law.

Source: Explained | Why do judges recuse themselves and how? A look at recent judicial recusals | Indian Express | Live Law | SCConline