RECUSAL OF A JUDGE
A Supreme Court judge recently declined to hear a petition filed against the attempt by the government to bring charges against Omar Abdullah under the Public Safety Act. Under the Jammu & Kashmir Public Safety Act, 1978, an individual is taken into custody to prevent him or her from behaving in any manner that would be detrimental to state security or public order.
WHAT IS RECUSAL? WHERE IS IT DEFINED?
Recusal of a judge is his refusal to hear a case by being the part of a bench. No codified provisions or procedures exist to abide by for recusal from hearing. The right to recuse is given to the discretion of the judges. The reasons behind the recusal can be moral grounds, conflict of interest or has a prior association with the parties in the case. For a long time, it has been a practice in the Supreme Court that in serious issues like inter-state water disputes, judges from the state concerned do not sit on the bench to decide them. But, in the judicial history, several instances came up when a party to the case has demanded that a particular judge of the bench shall recuse before the commencement of the proceedings.
What if every judge of the Supreme Court decides to recuse from the matter?
Incorporation of Article 128 in the Constitution is the reasonable foresight of the lawmakers. Under Article 128 of the Constitution, the Chief Justice, with the consent of the President, can appoint a retired judge of the Supreme Court or a High Court to sit in and act as a judge.
IS THE NEED OF RECUSAL JUSTIFIED?
- An essential postulate rule of law is that "justice should not only be done but it should also be seen to be done. If there is a reasonable basis for a litigant to expect that a particular judge should not hear his case and there is no lack of an alternative, then it is appropriate that the learned judge recuse himself so that people do not doubt the process.
- The Supreme Court's Restatement of Principles of Judicial Life categorically states, A judge in an organization in which he holds shares is concerned shall not hear and determine a matter unless he has declared his interest and has raised no challenge to his hearing and to his decision. He shall recuse so as to maintain transparency and impartiality.
- The Constitution Bench, in the 2015 judgment of the National Judicial Appointments Commission, highlighted the need for judges to provide reasons for recusal, as a mechanism for building accountability. It is the constitutional duty, as reflected in the judge’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.
- Articles 14 and 21 of the Constitution enshrine an obligation to act equally and impartially. The basic principle of judicial conduct involves taking the oath of office where judges pledge to execute their duties, to administer justice, "without fear or favour, affection or ill-will."
INSTANCES OF RECUSAL OR ITS DEMAND
- 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.
- During hearings in the National Judicial Appointments Commission case, there was a plea asking Justice Jagdish Singh Khehar, to recuse from hearing the case since he was a member of the collegium. In a unanimous decision, SC rejected the plea. It said that a Judge may recuse on his own. But recusal at the asking of a litigating party, unless justified, must never be acceded to. For that would give the impression of the Judge had been scared out of the case.
- CJI Ranjan Gogoi also decided against recusing from hearing a PIL highlighting the sub-human living conditions of detenues in Assam’s detention centers. According to him it would be inimical to the institution.
CONCERNS BEHIND RECUSAL
Recusal requests by the litigants threaten the independence of the judiciary and its ability to act impartially. There is also the risk that parties may abuse the principle of recusal and do not want a specific judge handling their case. It must be made clear that litigants cannot cater to a party's preference by cherry-picking the benches. It should not be used as a tool to maneuver justice and as an instrument to evade judicial work.
It is the obligation common to all judicial officers in the Constitution. Judicial officers have to withstand all sorts of pressure, no matter where they come from. If they deviate, the independence of the judiciary would be undermined, and the constitutional provisions themselves may be in turn defied. Therefore, a rule should be made as soon as possible which specifies the recusal procedure on the part of the judges.