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When can a judge opt out of a case?

What is the process of recusal in court? Do the reasons have to be specified?

The story so far: On February 12, Supreme Court judge Justice Mohan M. Shantanagoudar recused himself from hearing a petition filed by Sara Abdullah Pilot, sister of former Jammu and Kashmir Chief Minister Omar Abdullah, against the government’s move to charge him under the Public Safety Act. The case was finally heard by another bench. Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.

What are the rules on recusals?

There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge. The reasons for recusal are not disclosed in an order of the court. 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. The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest. For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable. Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right. A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

Should the reasons be put on record?

In his separate opinion in the National Judicial Appointments Commission judgment in 2015, Justice (now retired) Kurian Joseph, who was a member of the Constitution Bench, highlighted the need for judges to give reasons for recusal as a measure to build transparency. “It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case,” Justice Kurian wrote. One of his companion judges on the Constitution Bench, Justice (retired) Madan B. Lokur, agreed that specific rules require to be framed on recusal.

The two judges were referring to senior advocate Fali Nariman’s plea to Justice J.S. Khehar, who was then in line to be the next Chief Justice, to recuse himself. But Justice Khehar refused to recuse himself though he admitted that Mr. Nariman’s plea left him in an “awkward predicament”. Justice Khehar reasoned that he did not recuse himself for fear of leaving an impression that he was “scared”.

What happened in the Judge Loya and Assam detention centres cases?

In 2018, petitioners in the Judge Loya case sought the recusal of Supreme Court judges, Justices A.M. Khanwilkar and D.Y. Chandrachud, from the Bench as they both hailed from the Bombay High Court. The case banked on the written statements of two judges from that High Court, both saying that Judge Loya’s death was from natural causes. The court refused the request and called it a “wanton attack”. Recusal, the court observed, would mean abdication of duty. Maintaining institutional civilities are distinct from the “fiercely independent role of the judge as adjudicator”, the court explained.

In May 2019, in the middle of a hearing of a PIL filed by activist Harsh Mander about the plight of inmates in Assam’s detention centres, the then-Chief Justice Ranjan Gogoi was asked to recuse himself. In a lengthy order, Justice Gogoi said a litigant cannot seek recusal of the judge. “Judicial functions, sometimes, involve performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision. If the assertions of bias as stated are to be accepted, it would become impossible for a judge to seek clarifications and answers,” the court observed.

Why did Justice Mishra argue against recusal?

Refusing to recuse himself from the Constitution Bench hearing a question of law on the Indore Development Authority v. Manohar Lal (the issues involved in the case related to a reading of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013), Justice Arun Mishra said acquiescing to the wishes of parties to recuse himself would sound the death-knell for judicial independence. The petitioners had objected to Justice Mishra leading the Constitution Bench which was hearing a question of law challenging his own earlier judgment in the case. But Justice Mishra said it would be a “grave blunder” on his part to bow out.

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Printable version | Apr 4, 2020 11:06:19 AM | https://www.thehindu.com/news/national/when-can-a-judge-opt-out-of-a-case/article30831685.ece

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