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Friday, July 30, 2021

Explained: How judges recuse from cases, and why

When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception that she carried a bias while deciding the case.

Written by Apurva Vishwanath | New Delhi |
Updated: June 23, 2021 1:59:58 pm
The practice stems from the cardinal principle of due process of law that nobody can be a judge in her own case.

In the last week, two Supreme Court judges — Justice Indira Banerjee and Justice Aniruddha Bose — have recused themselves from hearing cases relating to West Bengal. On June 21, Delhi High Court judge Anup Bhambhani recused himself from hearing a plea by digital media houses challenging the validity of the IT rules regulating intermediaries.

Why does a judge recuse?

When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception that she carried a bias while deciding the case. The conflict of interest can be in many ways — from holding shares in a company that is a litigant to having a prior or personal association with a party involved in the case.

The practice stems from the cardinal principle of due process of law that nobody can be a judge in her own case. Any interest or conflict of interest would be a ground to withdraw from a case since a judge has a duty to act fair. Another instance for recusal is 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.

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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.

In Ranjit Thakur v Union of India (1987), the Supreme Court held that the tests of the likelihood of bias is the reasonableness of the apprehension in the mind of the party. “The proper approach for the Judge is not to look at his own mind and ask himself, however honestly, “Am I biased?” but to look at the mind of the party before him,” the court had held. “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,” states the 1999 charter ‘Restatement of Values in Judicial Life’, a code of ethics adopted by the Supreme Court.

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.

For instance, 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, despite several requests from the parties. Justice Mishra had reasoned that the request for recusal was really an excuse for “forum shopping” and agreeing could compromise the independence of the judiciary.

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.

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.

The two Supreme Court judges who have recused from cases relating to West Bengal had been Calcutta High Court judges. The cases they have recused from relate to post-poll violence in the state and the Narada scam, which have become political battles between the state and Centre in court.

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.

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