- GS 2: Separation of powers between various organs, dispute redressal mechanisms and institutions.
- Recently, a Delhi High Court judge recused himself from hearing a petition of digital media houses, which challenged the validity of the IT rules regulating intermediaries.
- It is not a one-off case and, just a few days ago, two Supreme Court judges had recused themselves from hearing a plea relating to West Bengal.
Recusal of Judges: What it means?
- Recusal or judicial disqualification means an act of abstention by any presiding court officer or an administrative officer from participating in an official action due to a conflict of interest.
Grounds for recusal
- The judge is biased in favour of a litigant of any case.
- The judge has an interest in the subject matter, either directly or indirectly.
- The judge is having prior experience on the subject of litigation.
- The judge knows the litigants personally.
What does the constitution say?
- Article 14, under its due process of law, states that no one can be a judge of her own case. Owing to this cardinal feature, conflict of interest was accepted as a ground for recusal.
Process of recusal
- The decision of recusal is, generally, taken by the judge herself. There are no formal laws, which defines the process of recusal.
- It is left on the conscience of judges to declare whether there is any potential conflict of interest arising from the litigation.
- When a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.
Past Supreme Court judgements
Although there are no formal rules, several Supreme Court judgements have dealt with the issue.
- Ranjit Thakur v Union of India (1987): In this case, the Supreme Court opined that the test of the likelihood of bias is the reasonableness of the apprehension in the mind of the parties to the litigation.
- The 1999 charter ‘Restatement of Values in Judicial Life’— a code of ethics adopted by the Supreme Court—states, “A Judge shall not hear and decide a matter in a company in which he holds shares… unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised”.
Issues with the recusal of judges
- Frequent recusal of judges from the cases raises questions on the independence of the judiciary, a basic feature of our constitution.
- Parties, sometimes, suggests that the judge should recuse herself from litigation. This precedent of judging the judge, without any significant evidence, is an alarming trend.
- It allows parties to cherry-pick judge of their own choice.
- The rule, which states that no one should be the judge of her own case, is subject to different interpretations. The conflict-of-interest clause is, at many times, misused.
- Judges do not record the reasons for recusal in writing, leaving plenty of scope for conjecture.
- In 2015, Justice Kurian Joseph and Justice Madan Lokur, while holding the National Judicial Appointments Commission unconstitutional, stated the need for judges to give reasons for recusal to build transparency and help frame rules to govern the process.
- Recusal must not become an instrument to navigate the justice delivery.
- Judicial officers must resist all the pressure, no matter where they are coming from. It is what our constitution expects from them.
- There is a need for definite and exhaustive rules, which deals specifically with this issue.