Insights into Editorial: Not without an explanation: when judges recuse themselves
The judiciary is witnessing a spike in judges choosing not to hear cases without giving any valid reasons. In some of these cases, the judges had heard the matters for several months.
In recent years, there have been many instances from high courts where judges referred cases to the chief justice for sending them to another bench.
Now recusals have become quite mysterious. Nobody knows whether it’s a recusal order. Recusal requests were also never made the way they are being made these days. There is a need that Judges should disclose reasons.
Judicial disqualification by Judges themselves:
Judicial disqualification, referred to as recusal, is the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer.
Applicable statutes or canons of ethics may provide standards for recusal in a given proceeding or matter.
Providing that the judge or presiding officer must be free from disabling conflicts of interest makes the fairness of the proceedings less likely to be questioned.
The judges of higher courts in India are supposed to dispense justice fairly and fearlessly, regardless of their prejudices and preferences they inherit from their upbringing and, criticism they may face from losing parties.
An unfortunate trend has, however, set in recent times when judges prefer to sit out, incensed by insinuations or scared of losing their high moral ground.
General Grounds for Recusal:
Motions to recuse or disqualify judges and other adjudicators have been made for all sorts of reasons.
Most commonly such motions are predicated upon a claim that the judge is biased in favour of one party, or against another, or that a reasonable objective observer would think he might be.
But such motions are also made on many other grounds, including the challenged judge’s:
- Interest in the subject matter, or relationship with someone who is interested in it.
- Background or experience, such as the judge’s prior work as a lawyer.
- Personal knowledge about the parties or the facts of the case.
- Ex parte communications with lawyers or non-lawyers.
- Rulings, comments or conduct.
Recusal Judges must always in conscious of “Oath of their office”:
In taking oath of office, judges, both of the Supreme Court and of the high courts, promise to perform their duties, to deliver justice, “without fear or favour, affection or ill-will”.
While “fear and favour” are “enemies of independence, which is a state of being”, affection and ill-will “undermine impartiality, which is a state of mind”.
The purpose of recusal, is to underpin these twin pillars of independence and impartiality. A decision, therefore, on a demand for a judge’s disqualification is an especially solemn one.
A gratuitous recusal, much like a failure to recuse when faced with genuine conflicts of interest, traduces the rule of law.
To withdraw from a case merely because a party suggests that a judge do so impairs judicial fairness. It allows parties to cherry-pick a bench of their choice.
But, Same Recusal happening in High Courts also:
Recently, two judges of the Gujarat High Court withdrew from a set of controversial cases by merely saying, “not before me.”
Similar orders were passed by three judges of the Nagpur bench of the Bombay High Court, who refused to hear a plea filed by a lawyer Satish Uke concerning the death of Judge B.H. Loya.
Unsurprisingly, though, none of the judges recorded their reasons in writing, allowing, in the process, plenty of scope for conjecture and surmise.
Formulating rules about “when to take Recusal” is need of the hour:
No doubt, in some cases, prejudice is presumed: for example, where a judge has appeared for one of the litigants at some stage in the same dispute.
It’s also by now an axiomatic rule that no person should be a judge in her own cause. But there are cases where somebody else’s cause becomes the judge’s own.
In disputes where a judge has a financial interest in the litigation, where a judge owns shares in a company which is party to the case, the fact of owning shares is, in and of itself, considered a disqualification.
But in the absence of a well-defined rule that helps establish a basic standard, a decision of this kind can prove troubling somewhere down the line.
Ultimately, a mistaken case of recusal can prove just as destructive to rule of law as those cases where a judge refuses a recusal despite the existence of bias.
We mustn’t allow recusals to be used as a tool to manoeuvre justice, as a means to picking benches of a party’s choice, and as an instrument to evade judicial work.
Reasons for recusal must be assigned, whether they are personal or public, says senior advocate Rajiv Dhavan.
As the Constitutional Court of South Africa held, in 1999, “the nature of the judicial function involves the performance of difficult and at times unpleasant tasks,” and to that end judicial officers “must resist all manner of pressure, regardless of where it comes from.
This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself.”
Justice Kurian Joseph said in his verdict on the National Judicial Appointments Commission. Being an institution, whose hallmark is transparency, it is only proper that the judge discharging high and noble duties, at least broadly indicate the reasons for recusing from the case.
It needs to be understood that judgements have no colour and judges must exhibit a yogi’s detachment. The seat they occupy gives them zero immunity from recusal, irrespective of price they have to pay.
It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.