[op-ed snap] Not without an explanation: when judges recuse themselves

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Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Judges Recusing themselves from hearing cases must give their reasons in writing for recusing themselves from specific cases.


NEWS

CONTEXT

Recently 3 Judges Recused themselves from hearing the case challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation.

Previous  cases of recusals

  • Justice U.U. Lalit recused himself from hearing the dispute over land in Ayodhya after senior advocate Rajeev Dhavan pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest.
  • Two judges of the Gujarat High Court withdrew from a set of controversial cases by merely saying, “not before me.”

Problem with such recusals

  • None of the judges recorded their reasons in writing, allowing, in the process, plenty of scope for conjecture and surmise.
  • Not having a written order specifically justifying the recusal, it’s difficult to tell whether the disqualification was really required.
  • An unwarranted recusal, much like a failure to recuse when faced with genuine conflicts of interest, damage the rule of law.
  • To withdraw from a case merely because a party suggests that a judge does so impair judicial fairness.
  • It allows parties to cherry-pick a bench of their choice.

Obligations of Judiciary

  • In taking the 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 favor, affection or ill-will”.

Formulating Rules

  • There are no definite rules on recusals by Judges.
  • Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015) 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,”
  • “But in other cases, such an inquiry is required, and the relevant test is the ‘real danger’ test.”
  • The test does provide a plausible solution, so long as judges make their choices by reducing their reasons to writing.
  • For when judges choose without a rational motive, without expressing their decisions in writing, they hurt the very idea of judicial rectitude.

Way Forward

  • 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.
  • 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.
  • 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.”

 

Judiciary Institutional Issues
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