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To be or not to be???
Independent and transparent judicial system is the means to attain equity and justice. To achieve these goals, constitution gave us certain provisions and principles to abide by. Principles like ‘justice delayed is justice denied’, ‘Justice should not only be done but seem to be done’ are like unsaid rules to the Judiciary.
The latter conveys the confidence in the judicial system and trust of citizens in our courts. It is pertinent for the officers occupying significant positions to be neutral while adjudicating disputes. For the judges to be impartial and independent of bias, it is important for them to be free of fear or favour. With recent judgement of the SC, the office of CJI is into the ambit of RTI and this reiterates that transparency is vital. To bring in this transparency, it is for the judges to reason their orders and recuse themselves from cases, when need be.
What is recusal?
The chair of a judge is to make sure the dispute in question is resolved free of bias. Existence of an impartial judge is the cornerstone of independent judiciary. Are there any guiding principles for the officers to follow? Answer to this would be affirmative and traces back to Principles of Natural Justice (PNJ). One such principle is nemo judex in re sua which means no man can be a judge in his own cause. A judge does not choose the case, it is allocated to them, and he/she resolves it. There is an option to excuse himself/herself in case of conflict of interest. Excusing oneself from hearing a case is called ‘recusal’. This is advisable when a case is allocated to a judge, if he/she has direct or indirect connection to the parties involved or has represented the parties earlier in any other court, to avoid the possibility of being partial inadvertently. As it is said, justice should not only be done but seem to be done.
In India, there is no written law in this regard but there are multiple instances where judges and Indian courts have nourished these principles. It is usually the prerogative of the judges but at times the parties to the case can request for such recusal.
Instances
CJI NV Ramana recused himself from hearing in few instances, one being the case of sexual harassment against the then CJI and another being from hearing a petition challenging appointment of interim CBI Director. Justice Bhandari recused from Novartis IP petition for Glivec. As many as five judges have recused themselves from a case involving Gautam Navlakha, a human rights activist. Justice UU Lalit recused from being a part of the five-judge historic bench that heard Ayodhya dispute as he represented former UP CM Mr. Kalyan Singh in 1994.
Instances are numerous and the underlying thought behind this doctrine is, even a slight probability of being biased still damages the integrity and independence of the Judiciary. Even though a judge is impartial but does not seem to be to the parties involved, then, recusal is necessary.
Can a judge refuse to recuse?
In 2019, in a controversial case, Justice Arun Mishra refused to recuse himself from heading a constitution bench. He was leading a 5-judge bench which was to hear an appeal from the judgement authored by Justice Mishra himself earlier. Despite the party’s request to recuse, Justice Mishra refused to do so from the case and said maligning the judge in the social media is like maligning Supreme Court.
Should they record the reasons
It is not mandatory to record the reasons for any judge. Few of them mention the reasons while recusing, while few of them do not disclose the reasons for doing so. Most of the times the reasons are apparent. It is highly recommended by the experts to record the reasons to build transparency in the judicial system and set the process in place for the generations to follow going forward.
There is another angle to the principle as eminent jurists opine this as an escape route from the solemn responsibility vested in the judges and allows the litigants to cherry pick the bench of their choice. This further delays the process in the courts as once a judge recuses, the case comes before the CJI for further listing.
~Authored by Pallavi Rupanagudi