Recusal of Judges | 17 Dec 2022

Why in News?

Recently, a Supreme Court (SC) judge recused herself from hearing a writ petition filed by Bilkis Bano against a Gujarat government decision to prematurely release 11 men sentenced to life imprisonment for gang-raping her during the 2002 riots.

What is Recusal?

• About:
  • It is the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer.
• Rule for Recusal:
  • There are no formal rules governing recusals, although several SC judgments have dealt with the issue.
    • In Ranjit Thakur v Union of India (1987), the SC held that the test of the likelihood of bias is the reasonableness of the apprehension in the mind of the party.
    • The judge needs to look at the mind of the party before him, and decide that he is biased or not.
• Reason for Recusal:
  • 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.
  • The conflict of interest can be in many ways such as:
    • Having a prior or personal association with a party involved in the case.
    • Appeared for one of the parties involved in a case.
    • Ex parte communications with lawyers or non-lawyers.
    • An appeal is filed in the SC against a judgement of a High Court (HC) that may have been delivered by the SC judge when he was in the HC.
    • In a matter of a company in which he holds shares unless he has disclosed his interest and there is no objection to it.
  • 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.

What is the Process of Recusal?

• The decision to recuse generally comes from the judge himself as it rests on the conscience and discretion of the judge to disclose any potential conflict of interest.
  • Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
• In some circumstances, lawyers or parties in the case bring it up before the judge. 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.
• If a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.

What are the Concerns related to Recusal?

• Undermining Judicial Independence:
  • It allows litigants to cherry-pick a bench of their choice, which impairs judicial fairness.
  • Also, the purpose of recusal in these cases undermines both independence and impartiality of the judges.
• Different Interpretations:
  • As there are no rules to determine when the judges could recuse themselves in these cases, there are different interpretations of the same situation.
• Delays the Process:
  • Some requests for recusal are made with the intent to intimidate the court or to get better of an 'inconvenient' judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice.

Way Forward

• Recusals should not be used as a tool to manoeuvre justice, as a means to pick benches of a party’s choice, and as an instrument to evade judicial work.
• Judicial officers must resist all manner of pressure, regardless of where it comes from and if they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself.
• Therefore, a rule that determines the procedure for recusal on part of judges should be made at the earliest.

Source: TH