The judicial conduct of a judge is based on this basic principle which guides him/her to serve their duty to bring justice which is to perform the duties of his office “without fear or favour, affection or ill-will and that they will uphold the Constitution and the laws.” Article 14 and Article 21 of the constitution confers the responsibility to act fairly and impartially.

What is the Recusal of Judges?

The word recusal in judicial context means to “remove oneself due to conflict of interest”. Recusal is “removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest”. In India Judiciary is considered to be the ultimate force in serving justice and therefore the judges of the High Court and Supreme Court are required and expected to possess the quality of being fair and impartial while performing their duties. Judges many times and have recently been noticed to recuse themselves from the matter and transfer the matter to their colleagues when they have observed that their opinion can be influenced and they will not be able to serve justice impartially.

What are the different kinds of recusal?

It has been observed that there are two types of recusal of judges:

Firstly, Automatic Recusal, in this kind, a judge can himself withdraw himself from the case.

Secondly, where one of the parties objects the fairness of the judge due to his personal bias or interest in the case followed by the parties request of recusal of the judge.

A judge cannot be forced to recuse himself from a case and therefore it is the judge who is vested with the power of recusal. The judge is not asked for a reason for doing this as he is not expected by the judicial order to disclose the reason for him deciding to recuse himself from a specific case. The judges are given this independence in this context.

When a judge should recuse himself?

A judge in order to maintain fairness and impartiality in his duty to perform an action should recuse himself in the following situations:

• When the judge is interested in the subject matter or he has a relationship with someone who has an interest in it.
• When the background or he has some experience in relation to the matter at hand as a lawyer. Example when he has appeared as a lawyer in the same matter for which he is sitting as a judge.
• When he has personal knowledge about the parties or the case before him
• When there is ex parte communication with the parties or lawyers.
• When he has previously commented or has given a ruling in the same case.

How the practice of recusal started in Common Law jurisprudence?

The practice of recusal of justice was first observed and it can be marked that in the case of 1852 in Dimes v Grand Junction Canal where the interest of judge has been questioned as he possessed some share of the company which is a party to the case. It has held in this case that Lord Cottenham was “disqualified on the ground of interest from sitting as a judge in the cause and that his decree was, therefore, voidable, and must consequently be reversed.” After this case, recusal becomes a practice in the common law jurisprudence.

Position in India

India currently does not have any provisions governing this practice of recusal by judges. However, there have been instances where the courts have tried to take action and provide clarity when such recusal by judges can be accepted by the court. These actions by the court tried to provide that justice is served by following the basic principles of impartiality. 

• It was seen in the case of Ashok Kumar Yadav v State of Haryana & Ors that the court held that “the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. The question is not whether the judge is actually biased or in fact decides partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. If there is a reasonable likelihood of bias it is “in accordance with natural justice and common sense that justice likely to be biased should be incapacitated from sitting.”

• In Novartis AG v Union of India case, Justice Markandey Katju withdrew his name from this case has according to him it would not be ideal for him to deal with Novartis appeal. His withdrawal from the case was apparently meant to preclude fears of bias in the MNC camp on account of an article he had written five years earlier against a liberal grant of pharma patents.

• In Supreme Court Advocates-on-Record Association & Anr v Union of India, the impartiality and interest of Justice Khehar was questioned. It was held that: 

• “Firstly held – It is the duty of a Judge to hear every matter placed before him without fear or favour and a Judge must never recuse himself on the asking of a litigating party unless justified, 
• Secondly, held – 

• (1) in case of the financial interest of Judge in the outcome of a case, he is automatically disqualified from hearing the case  
• (2) Pinochet principle: In cases where Judge is interested in a cause being promoted by one of the parties, then also he is automatically disqualified from hearing the case
• (3) In the cases where the interest of judge is other than financial or where Pinochet Principle does not apply, disqualification is not automatic, but real danger/ reasonable apprehension of bias test is to be applied. 

Thus, held consideration of constitutional validity of 99th Constitution Amendment by Khehar, J in his capacity of Presiding Judge of present Constitution bench did not attract any of these principles and his recusal from the present case was not warranted at all. 

• The most recent case which again made people talk about the recusal of judges from cases was when Justice Arun Mishra in Indore Development Authority v. Manohar Lal & Ors. was questioned by the party for his recusal as he has earlier been on the bench for deciding the same case and again he will be sitting for deciding his own judgement. Justice Arun Mishra has said that such demands by the party are bench hunting attempts. The key elements of Justice Mishra’s ruling on his recusal, are as follows:

(i) It is for a judge to decide to recuse and that “the ultimate test is that it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by the fact or law and is able to take an independent view….in case the answer is that he will be able to deliver justice to the cause, he cannot and must not recuse from any case as the duty assigned by the Constitution has to be performed as per the oath and there lies the larger public interest.”

(ii) It has been further held that “A judge rendering a judgement on a question of law would not be a bar to her or his participation if in a larger bench that view is referred for reconsideration. The previous judgement cannot constitute bias or a pre-disposition nor can it be seen as such. Nor can expressions through a judgement (based on the outcome of arguments in an adversarial process) be a “subject matter” bias on the merits of a norm or legal principle or provisions.”

(iii) Giving a right to a party to seek recusal of a judge will amount to diluting the roster making power vested with the Chief Justice and once the Chief Justice has exercised his power it is not for the Judges to choose. If requests for recusal are acceded to for the asking, litigants will be unscrupulously taking over the roster making power of the Chief Justice and would tantamount to interference with the judicial system “would give room to big and mighty to destroy the very judicial system.” Thus the Court has sought to impose on Judges to not recuse, except if they feel they cannot deliver justice in the matter. Justice Arun Mishra was not recused as per the order dated  23.10.2019.

Conclusion

The present judicial structure in context to the recusal of judges is different from what was observed and seen in the initial days of it emerging as a custom in common law jurisprudence. India is still one of the countries which are not having any provisions regarding the recusal of judges. It has been observed in the past few years that many Supreme Court and High Court judges have recused themselves from hearing the cases like in Bhima Koregaon casethree judges including the then CJI Ranjan Gogoi have recused himself from hearing the activist Gautam Navlakha case followed by his colleagues. There have been several bills pending on making a few guidelines which could be implemented. The guidelines formed in previous cases could not be seen used in what it was formulated for. There have been different opinions and debates about whether a judge should give reasons for recusal or not. Presently there is no law governing the actions of recusal but only the basic principles of natural justice acting as a guiding force.

EndNote

1. INDIA CONST. Schedule III, List IV (Forms of oath or affirmation) (1950).
2. Black’s Law Dictionary, 1303 (8th ed. 2004).
3. Dimes v Grand Junction Canal, 10 E.R. 301.
4. Ashok Kumar Yadav v State of Haryana & Ors (1985) 4 SCC 417.
5. Novartis Ag v Union of India, (2013) 6 SCC 1.
6. Lamenting that “many of the medical drugs available in the market are too costly for the poor people in India”, Katju said in his article that “ways and means should therefore be thought out for making these drugs available to the masses at affordable prices”.
7. Manoj Mitra, Novartis case: How two SC judges had recused themselves from the case, TOI (Apr 2, 2013). available at: http://articles.timesofindia.indiatimes.com/2013-04-02/India/3821751Olimatinib-European-patent-‘patent-application.
8. Supreme Court Advocates-on-Record Association & Anr v Union of India, (2016) 5 SCC 808.
9. Indore Development Authority v. Manohar Lal & Ors. (SLP (C) 9036-9038/2016).
10. Rautray, S. (2019). Navlakha Case: Fifth Supreme Court judge recuses self. The Economic Times. [online] Available at: https://economictimes.indiatimes.com/news/politics-and-nation/koregaon-bhima-case-justice-bhat-recuses-himself-from-hearing-navlakhas-plea/articleshow/71419301.cms?from=mdr .