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Judicial Recusals

Published: 1st Jun, 2023

Judicial Recusals

Context

The former Supreme Court justice recently refused to recuse himself from hearing a plea by a former Indian Police Service (IPS) officer to present further evidence to support his Gujarat High Court appeal against his conviction in a 1990 custodial death case.

What is Judicial Recusal?

  • 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.
  • Recent Example in this regard: In 2019, CJI Ranjan Gogoi refused to recuse himself for some adverse oral remarks, saying that the plea had ‘enormous potential to damage the institution’.
  • Absence of statute: There is no statute laying down the minimum procedure which judges must follow in order to ensure the impartiality.

Types of judiciary recusal in practise

Automatic Recusal

Plea for recusal (personal interest)

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

 

  • 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

 

Why do judges recuse?

  • Withdrawal: A judge can withdraw from a case if there is a potential conflict of interest, such as holding shares in a litigant company or having a prior or personal association with a party.
  • Principle of due process of law: This practice stems from the principle of due process of law and the principle of justice must not only be done but must also be seen to be done.
  • Pecuniary Interest: The Supreme Court has adopted the Restatement of the Values of Judicial Life, which forbids a judge from deciding a case involving any entity where he holds pecuniary interest unless the concerned parties have no objections.

Recusal of Judges in foreign jurisdictions?

  • The United States has a well-defined law on recusals, codified in the American Bar Association's Model Code of Judicial Conduct. It specifies three grounds for recusal:
    • Financial or corporate interest
    • Material witness or lawyer
    • Relationship

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