Judicial disqualification or recusal
There is an inflamed controversy as to when judges should recuse themselves from hearing a case. It has been brought to the fore by unhappiness that Justice Arun Mishra refused to recuse himself in a case on which he had admittedly strong views stated in a Supreme Court judgment on the subject of the manner of payment of compensation to be awarded in certain classes of cases under the old Land Acquisition Act, 1894.
• Judicial disqualification, referred to as recusal, is the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer.
• Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
• Other reasons for recusal from a case include:Interest in the subject matter, or relationship with someone who is interested in it; Background or experience, such as the judge’s prior work as a lawyer; Personal knowledge about the parties or the facts of the case; Ex-parte communications with lawyers or non-lawyers; Rulings, comments or conduct.
• There are no written rules on the recusal of judges from hearing cases listed before them in the constitutional courts. It is left to the discretion of a judge.
• The reasons for recusal are not disclosed in an order of the court.
• SC in the NJAC judgment noted that, a judge may be required to step down in one of two scenarios: cases of presumed bias, where the judge has a pecuniary interest in the outcome of a case (extended, through the Pinochet judgment to other similar non-pecuniary interests); or in the cases of apparent bias, where a reasonable, fair-minded observer would believe there is a real possibility that the judge is biased.
Issues related with recusal
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.
Some have argued that, because the current Bench will be indirectly ruling on the rectitude of the Indore Development Authority judgment, Justice Mishra is, in effect, sitting on appeal over his own judgment.
Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015) held that “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.
Why should Justice Mishra not recuse himself of the proceedings?
Judges are permitted to have pre-existing opinions on legal issues they decide. Indeed, such opinions are often acknowledged as expertise and rewarded through appointment to specialised benches and tribunals. It is only when such opinions acquire a certain severity, such that the judge closes their mind and refuses to be persuaded by reason that the question of impartiality arises.
It is only when such opinions acquire a certain severity, such that the judge closes their mind and refuses to be persuaded by reason, that the question of impartiality arises.
Such a recusal would set a dangerous precedent for future litigants to cherry-pick their benches and coerce judges they find unfavourable into stepping down. Such a position would severely undermine the administration of justice in the Indian legal system.
Justice Arun Mishra said acquiescing to the wishes of parties to recuse himself would sound the death-knell for judicial independence.
India does not have a method to deal with complaints with regard to the conduct of the judges, short of impeachment. Other jurisdictions have effective systems of complaint and discipline. We don’t. This is an important area to develop to prevent our judges becoming arrogant, indiscipline and a law unto themselves with disastrous effects on the faith of people in the judiciary to dispense justice.
In the National Judicial Appointments Commission judgment in 2015, former Justice 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,”
One of his companion judges on the Constitution Bench, former Justice Madan B. Lokur, agreed that specific rules require to be framed on recusal.