Recusal of Judges | IASbaba

JUDICIARY/ ETHICS

Topic:

• GS-2: Structure, organization and functioning of the Judiciary 

Recusal of Judges

Context: Recently, two Supreme Court judges — Justice Indira Banerjee and Justice Aniruddha Bose — have recused themselves from hearing cases relating to West Bengal.

Recusal = Withdrawal of a judge or prosecutor from a case on the grounds that they are unqualified to perform legal duties because of a possible conflict of interest or lack of impartiality

Why does a judge recuse?

• To Prevent Perception of Bias: When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception that he carried a bias while deciding the case. 
• Nemo judex in causa sua: This latin term translates to “nobody should be a judge in his/her own case” which is a cardinal principle of due process of law. 
• Fair & Trustworthy system: Any interest or conflict of interest should be a ground to withdraw from a case since a judge has a duty to act fair. Recusal during such situation leads to reliable, trustworthy judicial system.

In what all situations conflict of interest usually arises?

The conflict of interest can be in many ways —

• If a judge is holding shares in a company that is a litigant in the case being heard
• If a judge is having/had a prior or personal association with a party involved in the case.
• When an appeal is filed in the Supreme Court against a judgement of a High Court that may have been delivered by the SC judge when she was in the HC.

What is the process for recusal?

• The decision to recuse generally comes from the judge herself 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. 
• If a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.
• There are no formal rules governing recusals, although several Supreme Court judgments have dealt with the issue (Ex: Ranjit Thakur v Union of India, 1987)

Can a judge refuse to recuse?

• Once a request is made for recusal, the decision to recuse or not rests with the judge. 
• While there are some instances where judges have recused even if they do not see a conflict but only because such an apprehension was cast, there have also been several cases where judges have refused to withdraw from a case.
  • In the Ayodhya-Ramjanmabhoomi case, Justice U U Lalit recused himself from the Constitution Bench after parties brought to his attention that he had appeared as a lawyer in a criminal case relating to the case.
  • In 2019, Justice Arun Mishra had controversially refused to recuse himself from a Constitution Bench set up to re-examine a judgement he had delivered previously on 2013 Land Acquisition law.

Do 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.
• In a landmark verdict in 2015 holding that the National Judicial Appointments Commission as unconstitutional, Justice Kurian Joseph and Justice Madan Lokur had referred to the need for judges to give reasons for recusal to build transparency and help frame rules to govern the process.

Connecting the dots: