Chetan Kumar & Sudhanshu Sachan[*]
“Independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them”.
- Sir Stephen Sedley
The entire discussion regarding judicial recusal is a tussle between the principle of judicial autonomy and the right of the parties to have a fair trial. A lot has been discussed and deliberated about the philosophy behind judicial recusal and its need and the same has also gained prominence in the light of recent incidents. The stepping away of Justice Kaushik Chanda of the Calcutta High Court from hearing the high-profile Nandigram Petition filed by Mamta Banerjee was also in news. However, the most important question related to this conundrum still remains unanswered: how to decide whether a particular judge should recuse or not? In this piece, the authors aim to expound the premise behind judicial recusal and its relation with the Principles of Natural Justice. The authors then provide a brief account of provisions related to recusal as enumerated under different Indian statutes. The next part sheds light over the lacunas present under different tests that are used to determine whether recusal should take place or not and then proceeds to provide an alternate solution for the same.
The Third Schedule of the Constitution of India provides for the oath of judges that highlights that a judge will “…perform the duties of my office without fear or favour, affection or ill-will” which very categorically provides for the premise on which the principle of recusal is based. Hon’ble Justice Kurian Joseph has also affirmed the same as, “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”. Judicial impartiality is the cardinal principle over which the whole institution of judiciary stands. The masses have faith in this institution because they believe that the judges are neutral arbiters who are needed to make sure that no one’s life, liberty, or property will be seized based on an erroneous or inaccurate understanding of the facts or the law. It is the duty of the judge to decide a matter fairly and impartially.
The Black’s Law dictionary defines recusal as the removal of oneself as a judge or a policymaker in a particular manner, specifically due to a conflict of interest. The genesis of the concept of recusal of judges can be traced from the principle that implies fairness, reasonableness, equity and equality i.e., Natural Justice. According to this principle, the judge must not have any interest in the subject-matter of the case. When the judge learns that there is a conflict of interest, they must bow out from the case.
Recusal under different Indian statutes
The concept of recusal has been provided under numerous statutes for impartial functioning of various institutions. Section 479 of Cr.P.C., 1972 provides that no judge or Magistrate shall try any case to or in which he is a party or is personally interested. Here, the term ‘personal interest’ includes private as well as professional interest.
The practice of recusal is not limited to the judiciary, for instance, Section 12 of the Arbitration and Conciliation Act, 1996 provides for challenging the position of the arbitrator to arbitrate neutrally if any of the grounds enumerated under Schedule V of the Act are attracted. The grounds look into the association between the arbitrator’s relationship with parties or counsel, arbitrator’s direct or indirect interest in the matter etc. Moreover, the Secretarial Standard II on the appointment and role of chairman under the Company Law provides that the chairman should conduct the meetings in a fair and impartial manner. The chairman shall set out the objective and implications of the proposed resolutions and if the chairman is himself interested in any such proposed business resolution, they shall entrust the conduct of the proceedings in such respect to any other member or director.
The aforementioned Acts and provisions make it evidently clear that codification of grounds for recusal is not a new concept. However, it is imperative to note that there is still no codified law for determining issues of recusal for High Court and Supreme Court judges.
Pointing out lacunas
In India, there are no codified rules related to recusal of judges which lay down even the minimum requirement or procedure for the determination of impartiality. It is upon the sole discretion and consciousness of the judge to decide on such matters. Sometimes, the parties involved can also raise a plea of biasness and request recusal. There are various tests to determine biasness. The prominent ones include the test of real likelihood of bias (reasonable apprehension of bias), test of automatic disqualification etc. The ground for recusal and the tests to determine the same are in complete sync.
The purpose of this article is to highlight the lacunas in the manner through which judicial recusal matters are decided in India. There is no fair and just procedure to decide these issues. The parties can raise their concerns against a judge and if the judge against whom such an allegation is made wishes to recuse, they may do so. The judge has the complete and sole discretion in such matters. The issue is that at times such a discretion is exercised according to the whims and fancies of the judge which maligns the name of the institution, as is evident from the recusal case of Justice Arun Mishra. In addition, some judges, in order to protect the faith of the people in the institution and to uphold its principles, recuse when the litigants allege biasness. This gives birth to the practice of forum-shopping/bench hunting.
Author's proposal: A new policy framework
The authors oppose the current practice which gives the judges the sole discretion to decide whether to recuse or not. Alternatively, the authors propose a policy that can ensure fairness and equity in determining such issues. The following are the authors' proposal for a new policy framework:
Sua Sponte Recusal:
In sua sponte recusals, the judges recuse on their own. The authors suggest that in such matters when the judges are of the opinion that they should recuse, the parties should be consulted regarding any grievances they might have if the concerned judge stays in the bench and if the answer is in the affirmative, they should recuse and vice-versa.
Recusal Involving Conflicts:
In recusals involving conflicts, the parties to the case are of the opinion that the judge should recuse, however the judge does not subscribe to their view. This leads to a conflict of interest. The authors provide a 3-step process to determine such matters.
The parties alleging biasness should raise their concerns at the earliest possible opportunity and draft a complaint in which they cite the reasons in support of their allegations and the same should be provided to the concerned judge.
The concerned judge shall then provide a written reply to the same within a reasonable time frame.
If the parties are satisfied with the reply, the issue shall stand determined, otherwise, they can appeal against the same to the Chief Justice of the concerned court for final determination.
Justifications and conclusion
There are two significant reasons to back the suggestion to send the matter to the Chief Justice. Firstly, the judge against whom such allegations are made is the sole decision maker in the matter that is in contravention with the principle of nemo judex in causa sua. Therefore, a neutral arbiter is needed to decide such an issue. This practice of referring such cases to another judge is widely followed in various states of the USA.[i] The House of Lords has held that the test to determine biasness is to see whether the fair-minded and informed observer, having considered the facts, would determine that there was a real possibility that the tribunal was biased. The authors argue that such a fair-minded and informed observer cannot be the same person against whom allegations have been made. Such issues should be decided by a third person who, in the opinion of the authors, should be the Chief Justice of that court. Secondly, according to the cardinal principle of administrative law which denotes that the dismissal or removal of a person in service can only be done by the appointing authority and by no authority subordinate to it, i.e., the Chief Justice of the respective court. Thus, if the Chief Justice is the person in power for constituting benches, they should be the person to decide the recusal matters as well.
It can be argued that the judge against whom allegations are made is in the best position to decide the same. However, the object behind the law of recusal is not merely that the scales be held even; it is also that they may not appear to be inclined.[ii] The authors have framed their proposal keeping in mind the same. The authors propose that the said procedure should be enumerated under The Judges (Inquiry) Act, 1968 by insertion of a Part-II in the Act as it would ensure legislative backing, foster procedural fairness in the system and assure that justice is served to all.
[*] Chetan Kumar and Sudhanshu Sachan are fourth year law students at Central University of South Bihar. [i] Leslie W Abramson, Deciding Recusal Motions: Who Judges the Judges, 28 Val. U. L. Rev., 543, 551 (1994). [ii] R v. Bath Compensation Authority, (1925) I KB 635.