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Recusal in Judiciary

  • Category
    Polity & Governance
  • Published
    30th Jun, 2021

In less than a week, two Supreme Court judges hailing from Kolkata have now withdrawn themselves from two politically sensitive cases involving the state government.

Context

In less than a week, two Supreme Court judges hailing from Kolkata have now withdrawn themselves from two politically sensitive cases involving the state government.

Background

  • Justice Indira Banerjee expressed ‘personal difficulties’ in taking up a clutch of petitions related to post-poll violence in the state of West Bengal and recused herself.
  • Supreme Court judge Justice Aniruddha Bose recused himself from hearing appeals of West Bengal Chief Minister and state law minister about their role on the day of the arrest of few political leaders by the Central Bureau of Investigation in the Narada sting tape case.

Analysis

Doctrine of Recusal: The Concept

  • Recusal is removal of oneself as a judge or policy maker in a particular matter, especially because of a conflict of interest.
  • It is a basic precept that no one should be a judge in his or her own case.
  • Courts must keep the promise of dispensing fair and impartial justice, and must decide controversies without bias.

Need of Recusal in Judiciary

  • The requirement is that the judge must be impartial and must decide the case objectively on the basis of the evidence on record.
  • A person cannot take an objective decision in a case in which he has interests, for as human psychology tells us, very rarely can people take decisions against their own interests.
  • This concept of recusal is applied not only to avoid the possibility of a partial decision but also to ensure public confidence in the in the impartiality of the adjudicatory process.
  • In this manner Impartiality, objectivity and public confidence provide the foundation on which the superstructure of rule against bias is built.

Recusal in India

  • Absence of statute:
    • In India there is no statute laying down the minimum procedure which judges must follow in order to ensure the impartiality. However, courts have always insisted that judges and other adjudicatory authorities must ensure that they have to ensure principles of impartiality.
  • Inspired from Natural Justice
    • The principles of Natural Justice have developed with the growth of civilization and the content thereof is often considered as a proper measure of the level of civilization and Rule of Law prevailing in the community. It implies fairness, reasonableness, equity and equality.
  • Constitutional ethos:
    • Though the Indian constitution does not use the expression of recusal, the concept divested of all its metaphysical and theological trappings pervades the whole scheme of the Constitution.
    • Duty to act fairly and impartially is ingrained in articles 14 and 21 of the constitution. Indian courts have nourished these values with reference to administrative decision making and emphasized on the test of 'real likelihood of bias.'
  • Supreme Court views
    • The reasonableness of the apprehension in the mind of the partyis relevant according to Supreme Court
    • Hence the proper approach in case of bias for the Court is not to look into his own mind and ask "am I biased?" but to look into the mind of the party before it.

Types of judiciary recusal in practise

  • In India two methods are normally being practiced, automatic recusal and If no one objects, a judge may proceed with the matter.
  • Automatic Recusal
    • Case of Justice Markandey Katju
      • He followed the practice of automatic recusal when he withdrew his name from the Novartis case by saying that it would not be proper for him to deal with the appeal filed by Novartis.
      • His withdrawal from the case was apparently meant to preclude fears of bias in the MNC camp on account of an article he had written five years earlier against liberal grant of pharma patents
    • If no one objects, judge may proceed
      • Case of Justice S. H. Kapadia
        • Disclosing the fact that he owns some shares in Vedanta, he asked the lawyers appearing in the case at Punjab High Court whether he should recuse himself from hearing the case if the lawyers had any objections.
        • Had there been any objections the judge would have recused from the case

Usual Grounds of Recusal

  • Disqualification by interest: it is where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.
  • Disqualification by conduct: it includes ‘published statements’ and ‘consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias’.
  • Disqualification by association: it consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.
  • Disqualification by extraneous information: overlaps with the third, but commonly ‘consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias’.

Conclusion

  • Judiciary is not yet beyond self-redemption—is thought to have respectable weight, then the argument runs that reform had better come from within, rather than being imposed from out. But it does not work in all the cases and all the times.
  • Justice should not be left at the mercy of individual who so ever it may be. We are also in need of a model code of conduct on the pattern of United States, which will ensure the impartiality of judges and in turn will improve the confidence of people in the institution
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