Suhrith Parthasarathy | The Hindu | February 19,2019

When must ajudge disqualify herself from hearing a case? Must decisions of this gravity be left to the wisdom of individual judges? Under what circumstances does a decision of recusal transgress a judge’s general responsibility to sit and deliver impartial justice? Should not a judge who disqualifies herself be compelled to deliver an order explaining her reasons for recusal?

Cases at hand

These questions have been brought to sharp focus with a rash of recusals made by judges of the Supreme Court over the course of the last few weeks. In one case alone — challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation — three judges recused themselves. First Chief Justice Ranjan Gogoi disqualified himself, purportedly because he was set to be a part of the selection committee tasked with choosing a new CBI Director. He then assigned a bench presided by Justice A.K. Sikri to hear the case. But Justice Sikri too recused, on grounds, one assumes, that he was part of a panel that removed the previous CBI Director Alok Verma from his post. Next, Justice N.V. Ramana recused himself for apparently personal reasons. “Nageswara Rao is from my home state and I have attended his daughter’s wedding,” he told the petitioner’s counsel. However, none of these orders of recusals was made in writing, and, by themselves, the professed oral reasons for the decisions do not quite point to why the judges ought to have thought themselves incapacitated.

The recusals in the CBI case weren’t the only ones to make the news. Last month Justice U.U. Lalit recused himself from hearing the dispute over land in Ayodhyaafter senior advocate Rajeev Dhavan pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest. Although Mr. Dhavan said he had no specific objection to Justice Lalit continuing to hear the case, the judge, the court’s order notes, “expressed his disinclination to participate in the hearing any further.” But because we don’t have a written order specifically justifying the recusal, it’s difficult to tell whether the disqualification was really required.

Last September two judges of the Gujarat High Court withdrew from a set of controversial cases by merely saying, “not before me.” Similar orders were passed by three judges of the Nagpur bench of the Bombay High Court, who refused to hear a plea filed by a lawyer Satish Uke concerning the death of Judge B.H. Loya. Unsurprisingly, though, none of the judges recorded their reasons in writing, allowing, in the process, plenty of scope for conjecture and surmise.

In taking oath of office, judges, both of the Supreme Court and of the high courts, promise to perform their duties, to deliver justice, “without fear or favour, affection or ill-will”. While “fear and favour”, as Stephen Sedley, a former judge of the Court of Appeal of England and Wales, has written, are “enemies of independence, which is a state of being”, affection and ill-will “undermine impartiality, which is a state of mind”. The purpose of recusal, Mr. Sedley added, is to underpin these twin pillars of independence and impartiality. A decision, therefore, on a demand for a judge’s disqualification is an especially solemn one. A gratuitous recusal, much like a failure to recuse when faced with genuine conflicts of interest, traduces the rule of law. To withdraw from a case merely because a party suggests that a judge do so impairs judicial fairness. It allows parties to cherry-pick a bench of their choice.

Formulating rules

Given these implications, one can be forgiven for thinking there exists a set of concrete rules that tell us when a judge must recuse herself. But as T.R. Andhyarujina wrote some years ago, what we really have are different elucidations of a principle against an apprehension of bias. No doubt, in some cases, prejudice is presumed — for example, where a judge has appeared for one of the litigants at some stage in the same dispute. It’s also by now an axiomatic rule that no person should be a judge in her own cause. But there are cases where somebody else’s cause becomes the judge’s own.

In disputes where a judge has a financial interest in the litigation, where a judge owns shares in a company which is party to the case, the fact of owning shares is, in and of itself, considered a disqualification. This rule is derived from an 1852 House of Lords judgment, which held that Lord Cottenham ought not to have delivered a verdict in a case where he owned shares in one of the parties to the litigation. The tenet here appears clear enough, but it’s today muddled by the ubiquity of shareholdings by judges and judges’ relatives — Mr. Sedley cites the example of a 1980 appeal against Shell and BP in which “the registrar of civil appeals was unable to assemble three judges who had no shares in either defendant.” Invariably, therefore, when a judge owns shares in one of the litigants what we expect is disclosure of the fact, and if neither party objects one might think it’s acceptable for the judge to hear the case. But in the absence of a well-defined rule that helps establish a basic standard, a decision of this kind can prove troubling somewhere down the line.

The closest we’ve come in India to carving out a definite rule was a formulation made by Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015). Here, the 99th constitutional amendment was challenged, and a claim was made seeking Justice J.S. Khehar’s recusal. The plea was rejected, but Justice Chelameswar attempted to establish something akin to an elementary canon. “Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken,” he wrote. “But in other cases, such an inquiry is required, and the relevant test is the ‘real danger’ test.”

Even with this formulation, what constitutes real danger of bias remains a matter of construal. And whether an individual judge should be allowed to decide for herself on pleas of recusal is equally a point of contention. Yet the test does provide a plausible solution, so long as judges make their choices by reducing their reasons to writing. For when judges choose without a rational motive, without expressing their decisions in writing, they hurt the very idea of judicial rectitude.

Equally destructive

Ultimately, a mistaken case of recusal can prove just as destructive to rule of law as those cases where a judge refuses a recusal despite the existence of bias. We mustn’t allow recusals to be used as a tool to manoeuvre justice, as a means to picking benches of a party’s choice, and as an instrument to evade judicial work. As the Constitutional Court of South Africa held, in 1999, “the nature of the judicial function involves the performance of difficult and at times unpleasant tasks,” and to that end judicial officers “must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself.”

The article was originally published in The Hindu. Read the article here.