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Recusal of Judges
Context:
NCLAT member claims he was approached by judge for favour, recuses himself
Constitutional and Legal Basis
- No explicit provision in the Constitution for judicial recusal.
- However, derives strength from:
- Article 14 (Right to Equality before law): ensures fairness in adjudication.
- Article 21 (Right to life and personal liberty): includes fair trial as part of due process.
- Oath of Judges (Third Schedule): to perform duties “without fear or favour, affection or ill-will.”
Judicial Precedents:
- Ranjit Thakur v Union of India (1987): Test of bias is “reasonableness of apprehension in the mind of the party.”
- Supreme Court Advocates-on-Record Association v Union of India (2015): Pecuniary interest = automatic recusal.
- Subrata Roy Sahara v Union of India (2014): SC observed that recusal cannot be forced; rests on conscience of the judge.
- Veeraswami v Union of India (1991): Judges are accountable but must be protected against motivated allegations.
International Practices
- United States:
- Judicial Code of Conduct requires recusal in cases of personal bias, financial interest, or prior involvement.
- However, Supreme Court Justices themselves decide on recusal, similar to India.
- United Kingdom:
- Governed by the “real danger of bias” test (Porter v Magill, 2001).
- Strong emphasis on “appearance of justice.”
- European Court of Human Rights (ECHR):
- Principle of “objective impartiality” — even the perception of bias can vitiate fairness.
Concerns and Criticisms
- Threat to Judicial Independence: Litigants may misuse recusal requests to bench-shop.
- Delays in Justice: Frequent recusals derail hearings in constitutional and high-profile cases.
- Lack of Codified Rules: Leads to inconsistency; each judge exercises discretion differently.
- Transparency Issue: Judges sometimes do not record reasons for recusal, creating opacity.
Reform Proposals
- Codification of Recusal Norms
- Adoption of Judicial Standards and Accountability Bill (2010)-like provisions.
- A formal code of conduct, laying down objective grounds for recusal.
- Mandatory Disclosure of Reasons
- To prevent misuse and maintain transparency.
- Independent Scrutiny
- In sensitive constitutional cases, recusal requests could be decided by a larger bench rather than the concerned judge alone.
- Judicial Training & Sensitization
- On conflict-of-interest scenarios, especially in the age of corporate litigation and digital transparency.
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