Written by Bhuvi Gupta & Netra Karnam students at Institute of Law, Nirma University

Introduction 

Every judge, before starting their career, takes an oath “that I will duly and faithfully and to the best of my ability, knowledge, and judgment perform the duties of my office without fear or favor, affection or ill will, and that I will uphold the Constitution and the laws”. These words, enshrined in Schedule III of our Constitution, succinctly summarize the core values of professional, moral, and ethical responsibility and bestow upon them the role of guardians of justice. The Indian judicial ethical values, crystallized over the years through practice, are founded on the twin pillars of impartiality and independence. In 1997, the Supreme Court of India unanimously adopted a Charter on Restatement of Values of Judicial Life. The Charter outlines the principles of an ideal judicial life and supports equitable justice through recusal of judges.

This blog aims to delve into the concept of judicial recusal. It will draw a comparative analysis of practices of recusal followed in different countries. Further, it will examine the same in the Indian context and provide recommendations. 

Concept of Recusal 

Black’s Law Dictionary defines recusal as the “removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.” When a judge has some interest in the case before him, he may, voluntarily or at the behest of either of the parties, recuse himself from the case. Interest may create bias in the mind of the judge, leading to the possibility of partiality against or preference towards a party.
For justice to be delivered in its true sense, it is necessary that the same be done by an impartial adjudicator. This is a prerequisite to give meaning to the other components of due process of law, such as the right to an advocate, a hearing, and cross-examination of witnesses. Impartiality here connotes the absence of bias, real and perceived. There should not only be freedom from partiality but also from the appearance of partiality. Thus, the judicial codes and practices aim to prevent biased individuals from presiding over cases.

The rationale behind judicial recusal emanates from the idea of bias rule, originating from the principles of natural justice. The rule was established in Dr. Bonham’s case where Lord Coke had propounded the maxim nemo judex in causa sua, which translates to “no one is a judge in his own cause”. This means that no person should be a judge in a case where he or she is a party to it or has any interest in its outcome. The principle preserves judicial sanctity and institutionalizes the aspect of fairness in judicial, quasi-judicial, and administrative work.

Over the years and across jurisdictions, various grounds have been identified as rationales for recusal. Automatic disqualification occurs when the adjudicator may have a monetary interest in the outcome of the case. In the case of N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana, the Hon’ble Chief Justice of India reconstituted the bench when it was found out that one of the members was a member of the cooperative society for which the land had been acquired.

Another ground for recusal is personal bias that the judge may develop with respect to the subject matter or his relationship with the parties. In A.K. Kraipak v. Union of India, the acting Chief Conservator of the forest was a member of the selection committee for the All India Forest Services Cadre and was also one of the candidates who had applied through the same. While it was ascertained that he hadn’t involved himself in the selection process, the court held that there was a definite conflict of interest and that there was a definitive likelihood of bias. A subject-matter bias is when the adjudicating authority has a predisposition towards any issue. For example, in the case of Gullapalli Nageswara Rao & Ors. v. Andhra Pradesh State Road Transport Corporation & Ors, the Hon’ble Supreme Court quashed the Andhra Pradesh government’s decision to nationalize road transport stating, that the secretary of the transport department who pronounced the hearing held a subject-matter interest. 

The judge may recuse himself voluntarily or be asked to recuse himself at the request of the litigant. If a recusal takes place due to an objection raised by a litigant, reasons for the same should be provided to promote transparency and avoid forum shopping. For example, Justice U.U. Lalit automatically recused himself from the hearing for the land dispute in Ayodhya after it was brought to his notice that he had earlier appeared as counsel for the former Chief Minister of Uttar Pradesh in the 1997 contempt hearing. However, in Assam Sanmilita Mahasangha v. Union of India, the then CJI, Ranjan Gogoi, was requested to recuse himself from hearing the case as he had made certain comments during a previous hearing causing the petitioner to believe that the CJI had certain preconceived notions about the matter. However, the CJI refused to comply with the request.

Lord Hewart, in R. v. Sussex Justices, had remarked, “Justice should not only be done, but it shall also seem to be done.” In addition to recusal due to actual and apparent bias, the judge may also recuse himself to avoid an appearance or apprehension of bias in the mind of an observer. However, here the possibility of bias should be “real” and not a remote probability. The test to determine bias involves two stages. First, the judge must identify any factors that could cause a well-informed observer to reasonably fear that the case might not be decided solely on its merits. Second, the judge must determine whether there is a clear and logical link between those factors and the apprehension of bias.

Recusal in Foreign Nations

English Common Law:
The custom of recusal globally stemmed from the maxim “nemo judex in causa sua”, which has its genesis in the common law of UK. There is an absence of any codified law on recusal in the UK; the practice has evolved over the years through a series of cases. The early English law considered pecuniary interest as the sole ground for disqualification of judges. In The Queen v. Gough, there was a conflict over the application of two different tests when deciding the question of bias. The tests were of ‘reasonable suspicion’ and ‘real likelihood’. The House of Lords initially dismissed reasonable suspicion as a ground for disqualification. This was overturned in Magill v. Porter. Later, actual personal bias as well as apprehension of bias developed as grounds for recusal, including, but not limited to, apprehension of bias on grounds of consanguinity, affinity, friendship, or enmity with a party.

American Law:

The US had introduced the rule of recusal as early as 1792. The legislations were much like the ones in English law, the only addition being the codification of the same. The US laws considered actual bias as well as the appearance of it to be grounds for recusal. After its establishment in 1898, the American Bar Association introduced the Model Judicial Code. As said by former CJI Y. K. Sabharwal, “This Code provides that the judges should uphold judicial independence and integrity, avoid impropriety and the appearance of impropriety, and be impartial and diligent in performing their duties.” The Congress has also notified the rules in Section 455 of 28 US Code. In 1911, the Supreme Court of the US gave a significant ruling in Litkey v. United States. It was recognized that “no human being can be isolated from emotions and personal experiences”; hence, the scope of recusal was limited to the codified rules.

Position in India

India lacks a codified law on recusal, but the concept stems from Articles 14 and 21 of the Constitution, ensuring equality, fairness, and reasonableness. It is a standard, though not expressly codified, that judges look towards especially while deciding cases of recusal. Three principles were laid down in the landmark NJAC case with respect to recusal. First, automatic disqualification of a judge if they have a financial interest in the outcome of the case; second, in cases where the interest is other than monetary, an inquiry would determine whether a “real likelihood of bias” exists; third, automatic disqualification of the judge if they are interested in a cause of either of the parties.  

Borrowing from the English common laws, the Indian judiciary has also recognized the possibility of considered and conscientious recusal. A ‘real likelihood’ of bias based on non-pecuniary interests leads to the possibility of a considered recusal. The test applied is of the existence of a real danger and reasonable apprehension. A conscientious recusal is the voluntary recusal of the judge due to violation of his judicial conscience. 

In addition to the above, Professor Upendra Baxi, in his article, has propounded two additional reasons for recusal. Since allocation of matters is not a public affair, the refusal of a judge to adjudicate a matter goes unnoticed. There may also be institutional bias on the part of the court.

Concluding Remarks

The comparative analysis reveals that India lacks concrete laws on judicial recusal, relying only on the Charter on Restatement of Values of Judicial Life and landmark judgments as non-binding guidelines. The assumption that judges will act in good conscience leaves room for grey areas, making it essential for the judiciary to codify these principles into fixed regulations. “It is the duty of the judiciary to convert those unwritten principles into written rules and fill those gaps”.

Thus, here are some suggestions for the regulation and revitalization of judicial recusal in India:

• Enactment of laws to regulate the recusal of judges by setting both mandatory and optional criteria to cover pecuniary and non-pecuniary biases. 

• A judge should be mandated to provide reasons for her or his recusal, as even the litigants have the right to know the reasons for refusal.

• As an alternative, a dedicated statutory body may be formed to examine and address allegations of judicial bias. This committee would empower parties to lodge formal complaints while also retaining the discretion to initiate inquiries on its own accord in cases where bias is suspected.

As J.B. Thomas of Australia remarked, ethical standards— shaped by the example of respected peers— are more rigorous than legal rules and play a greater role in defining a profession’s quality and spirit.