Why do judges recuse themselves and how?

CategoryPolity

Last Updated27/05/2023

Recently, a former SC judge refused to recuse himself from hearing a plea by a former IPS officer to submit additional evidence to back his Gujarat HC appeal against his conviction in a 1990 custodial death case.
Similarly, a few weeks ago, the Chief Justice of India rejected an application seeking his recusal from hearing petitions seeking legal recognition of same-sex marriages.

Whenever there is a potential conflict of interest, a judge can withdraw from a case to prevent the perception that the judge was biased while deciding a case.
Possible reasons for conflict of interest:
- Holding shares in a litigant company to having a prior
- Personal association with a party
- When an appeal is filed in the SC against a High Court judgment delivered by the concerned judge before his elevation.

Stems from the cardinal principle of due process of law — nemo judex in sua causa, that is, no person shall be a judge in his own case.
Another principle is ‘justice must not only be done but must also be seen to be done’ propounded in 1924 in Rex v. Sussex Justices by the then Chief Justice of England.

2 kinds of recusals:
- An automatic recusal where a judge himself withdraws from the case
- When a party raises a plea for recusal highlighting the possibility of bias or personal interest of the judge in the case.
The decision to recuse rests solely on the conscience and discretion of the judge and no party can compel a judge to withdraw from a case.
If a judge recuses himself, the case is listed before the Chief Justice for allotment to an alternate Bench.
India has no codified rules governing recusals, although several Supreme Court judgments have dealt with the issue.

No statutory rules governing the process, it is often left to the judges themselves to record reasons for recusals.
Some judges specify oral reasons in open court while others issue a written order recording the reasons. In other cases, the reasons are speculative.
More often than not, the reasons behind a recusal are not disclosed leading to a diatribe against judicial transparency especially when mass recusals occur in sensitive cases.

Ranjit Thakur versus Union of India (1987): The SC held that to determine if a judge should recuse, what is relevant is the reasonableness of the apprehension of bias in the mind of the concerned party.
State of West Bengal versus Shivananda Pathak (1998): The SC defined judicial bias as a “preconceived opinion to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction”. Thus, it is a condition of mind which renders the judge incapable of impartiality in a particular case.
Supreme Court Advocates-on- Record Association versus the Union of India (2015): The Court observed that where a judge has a pecuniary interest, no further inquiry is needed as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias. However, other cases require such an inquiry, with the relevant test being the ‘real danger’ test— whether there is a ‘real danger’ of bias,.
Indore Development Authority versus Manoharlal and Ors (2019): The court held that a judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench to which a reference is made.

U.S.: The country has a well-defined law on recusals — Title 28 of the U.S. Code details the grounds for ‘disqualification of justice, judge, or magistrate judge’.
- Such rules are also codified in the American Bar Association’s Model Code of Judicial Conduct.
- This specifies three grounds for recusal:
  - Financial or corporate interest
  - A case in which the judge was a material witness or a lawyer
  - A relationship to a party.
- However, on several occasions, judges recuse on their own — known as sua sponte recusals.
U.K.’s law on judicial recusals : It evolved through judicial pronouncements.
- R versus Gough: The ‘real danger’ test was adopted as the applicable standard based on which recusal orders need to be passed.
- The test entailed disqualification solely on substantive and tangible evidence which highlights the presence of judicial bias & prejudice.

However, the ‘real danger’ test was subjected to substantial criticism especially since the European Convention of Human Rights requires only the ‘appearance of bias’ to ensure that an onerous burden is not placed on any litigant to prove actual bias.
Accordingly, a new test was formulated in Lawal v. Northern Spirit Ltd, where the standard laid down was to look at the likelihood of bias from the perspective of a fair-minded and reasonable observer.