Recusal

It is a trite maxim that justice should not only be done but manifestly seen to be done. A humorous application of this principle was when l...

It is a trite maxim that justice should not only be done but manifestly seen to be done. A humorous application of this principle was when late Justice K T Desai, upon his elevation to the Bombay High Court, instructed that two cushions be placed under his seat because of his short height so that litigants could see him manifestly dispensing justice.

This maxim is invoked in applications for recusal of a judge from a case inter alia on the ground of the judge8217;s relationship or close friendship with a party whose case is pending before him. What are the principles of recusal? This issue arose before the US Supreme Court in which recusal of Justice Scalia was sought from a case in which Dick Cheney, Vice-President of the US, was a party. The grounds were that Justice Scalia, his son and son-in-law were guests of the Vice-President at a duck-hunting party and therefore his 8216;8216;impartiality might reasonably be questioned8217;8217;. Justice Scalia refused to recuse himself. In an elaborate judgement, he stated that he never hunted in the same blind with the Vice-President, nor was he alone with him at any time during the trip, and nothing was said about the pending case. Furthermore, according to Justice Scalia, while friendship is a ground for recusal of a justice where the personal fortune or personal freedom of a friend is involved, traditionally that had not been a ground for recusal where official action was at issue. He gave several instances of Chief Justices and Justices of the Supreme Court who had close personal relationships with the President and other officers of the Executive.

Recusal was also sought on the ground that a significant portion of the press had demanded it. That argument was rejected because of several factual inaccuracies in the press reports and because his recusal would 8216;8216;encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate and increasingly silly reasons8217;8217;. Justice Scalia opined that 8216;8216;people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible, by the slightest friendship or favour8217;8217;.

This reminds me of an incident when Chief Justice Beaumont of the Bombay High Court was trying, along with Justice Chagla, a case of a party who had sent the Chief Justice a bag of potatoes. Chagla was shocked that the Chief Justice felt no impropriety in trying the case and told Chagla that the Bombay High Court could not be bought with a bag of potatoes!

Notions of impartiality vary with individual judges. Judicial traditions and culture of countries also vary. It is unimaginable that any judge of our Supreme Court or high court would decline recusal as Justice Scalia did. The crux of the matter is that appearances do matter and justice is rooted in confidence.

Beneficiaries of Sleep

Inordinate delays in disposal of an application for a licence or a permit or approval of building plans are frustrating and also breed corruption because 8216;8216;speed money8217;8217; then becomes necessary. In order to ensure expedition, statutory provisions were enacted that if an application was not disposed of within a certain period, it was deemed to have been granted. Unfortunately, the deemed approval provisions were misused and generated another phenomenon. The concerned officials suddenly realised the benefits of sleep, which poets have praised and doctors have advised, and fell into a stupor from which they awoke after the prescribed period for disposal of the application had expired. Property developers benefited the most from this new source of corruption.

There are other beneficiaries of sleep, namely litigants in the Supreme Court who manage that applications by government for leave to appeal are filed beyond the period of limitation and are consequently dismissed. Courts are liberal in condoning delay because of the cumbersomeness of administration and the slow movement of files from one section and department to the other. But when the delay is of over 100 days and in some cases of a year or more, delay is rightly not condoned in the absence of any satisfactory explanation.

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Moreover the opposite side has acquired a legal right to have the application dismissed because of limitation and condonation of delay in such cases also puts a premium on negligence or worse on the part of the involved officials. Without exaggeration, lakhs are lost every week in revenue matters, meritorious land acquisition cases get dismissed. Despite Supreme Court strictures and strong communications from the law officers to the concerned departments, the position has not appreciably improved. Apparently the Rip Van Winkle Syndrome is deep rooted and pervasive. It is essential to fix and enforce responsibility sternly on the erring officials, which will arouse them from their sleep and give them sleepless nights.