Recusal by Judges

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Context: Two Judges of the Supreme court have recently refused to recuse themselves from hearing a case despite allegations of bias.

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There are two separate instances where judges in the Indian judicial system have refused to recuse themselves from hearing a case despite allegations of bias.
In the first instance, former Supreme Court judge Justice M.R. Shah declined to recuse himself from hearing a plea by former IPS officer Sanjiv Bhatt, who sought to submit additional evidence in his appeal against his conviction in a 1990 custodial death case.
- Bhatt claimed that there was a reasonable fear of bias because Justice Shah had previously made critical remarks about him while hearing a related plea.
- However, Justice Shah dismissed Bhatt’s plea, accusing him of attempting to engage in “bench hunting,” which implies trying to manipulate the composition of the bench to obtain a favourable outcome.
The second instance mentioned involves Chief Justice of India, D.Y Chandrachud, who also refused to recuse himself from hearing petitions related to the legal recognition of same-sex marriages.
- Someone had requested his recusal, possibly due to concerns about his personal views or potential bias.
- However, the Chief Justice rejected the application and decided to continue presiding over the cases.

What is Recusal?

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.

The Restatement of the Values of Judicial Life adopted by the Supreme Court forbids a judge from deciding a case involving any entity where he holds pecuniary interest unless the concerned parties clarify that they have no objections.
By taking the oath of office, judges promise to perform their duties, ‘without fear or favour, affection or ill-will’, in accordance with the Third Schedule of the Constitution.

Reasons for Recusal by Judges

Judges recuse themselves from cases for several reasons, primarily to ensure the fairness and impartiality of the judicial process. Common reasons why judges choose to recuse include:

Conflict of Interest: A judge may have a personal or financial interest in the outcome of a case, such as owning shares in a litigant company or having a prior association with one of the parties. To avoid any perception of bias, judges recuse themselves to maintain the integrity of the judiciary.
Prior Involvement: If a judge had previously dealt with a case in a lower court, and an appeal is filed against that judgment in a higher court where the same judge is sitting, recusal may be sought to prevent any prejudice or potential bias based on their prior involvement in the case.
Personal Relationships: Judges may recuse themselves when there is a personal relationship or connection with one of the parties involved in the case. This could include close friendships, family ties, or any other relationship that could reasonably raise concerns about partiality.
Prejudgment or Bias: If a judge has made public statements or displayed a clear bias on the matter at hand, there may be a request for recusal to ensure an impartial hearing. The principle of nemo judex in sua causa, which means that no person should be a judge in their own case, is fundamental to this aspect.
Appearance of Bias: Judges may recuse themselves even if there is no actual bias but there is a reasonable apprehension or perception of bias. This is to maintain public confidence in the judiciary and uphold the principle that justice should not only be done but also be seen to be done.
Compliance with Judicial Standards: Judges are expected to adhere to ethical standards and guidelines that require them to avoid situations where their impartiality may be questioned. If a judge’s pecuniary interest or any violation of the values of judicial life is at stake, recusal may be necessary.

Procedure for Recusal

The procedure for recusal in India involves two types: automatic recusal and recusal based on a plea raised by a party.

Automatic Recusal: In this case, a judge voluntarily withdraws from a case based on their own conscience and discretion. This may occur when a judge recognizes a conflict of interest or perceives the possibility of bias. It is a voluntary decision made by the judge, and no party can compel them to withdraw from the case.
Recusal based on Plea: The other type of recusal occurs when a party raises a plea for recusal, highlighting the potential bias or personal interest of the judge in the case. The decision to recuse in such situations is also at the discretion of the judge, who considers the plea and determines whether there is a valid reason for recusal.
Other Instances: It is worth noting that while some judges have recused themselves even if they do not perceive a conflict, merely due to the apprehension of bias raised by a party, there have been instances where judges have refused to withdraw from a case. In such cases, the judge may provide reasons for their decision.
- If a judge decides to recuse themselves, the case is typically listed before the Chief Justice, who then assigns it to an alternate bench for further proceedings.

Rules for Recusal

India does not have codified rules specifically governing recusals.
However, the issue of recusal has been addressed in several judgments by the Supreme Court, providing guidance and establishing principles in this regard.

Rules Advocated by the Supreme Court

The Supreme Court of India has established certain rules and principles regarding recusal in previous judgments. Some notable rulings include:

Ranjit Thakur v. Union of India (1987): The Supreme Court held that the reasonableness of the apprehension of bias in the mind of the concerned party is relevant when deciding whether a judge should recuse. The judge should consider the perception of bias from the perspective of the party before them, rather than solely examining their own mind.
State of West Bengal v. Shivananda Pathak (1998): The Court defined judicial bias as a preconceived opinion or predisposition that hinders a judge’s impartiality in deciding a case. It referred to bias as a mental condition that renders a judge incapable of being unbiased.
Supreme Court Advocates-on-Record Association v. Union of India (2015): In this case, the Court clarified that if a judge has a pecuniary interest in a case, there is no need for further inquiry regarding the existence of bias. However, in other cases, the “real danger” test should be applied to determine if there is a genuine risk of bias. The focus is on the possibility, rather than the probability, of bias.
Indore Development Authority v. Manoharlal and Ors (2019): Justice Arun Mishra, in a controversial ruling, stated that a judge who has previously rendered a decision in a smaller combination is not automatically disqualified from being part of a larger bench where a reference is made. Justice Mishra emphasized that having a legal opinion on a matter does not necessarily disqualify a judge from being impartial, as it would be challenging to find judges to hear and decide on questions of law if recusal were to be made based on prior views.

Necessity of Judges to record their reasons for Recusal

The recording of reasons for recusal by judges is not mandated by statutory rules in India. It is at the discretion of the judges themselves whether they choose to specify the reasons for their recusal.

Some judges may provide oral reasons in open court, while others may issue a written order explaining their decision. In some cases, the reasons for recusal may remain speculative or undisclosed.
This lack of transparency regarding reasons for recusal has led to criticism of judicial transparency, particularly in cases where multiple judges recuse themselves in sensitive matters.
- For example, in the Bhima Koregaon case, five judges of the Bombay High Court recused themselves without providing explicit reasons.
- Similarly, when Supreme Court judge Justice Bela M. Trivedi recused herself from hearing Bilkis Bano’s plea, the absence of specified reasons gave rise to widespread speculation. It was widely believed that her past deputation as Law Secretary to the Gujarat government played a role in her recusal.
- In a 2015 Supreme Court judgment that struck down the National Judicial Appointments Commission (NJAC), the question of judges’ recusal arose.
In a recent ruling, the Delhi High Court stated that neither litigants nor third parties have a right to intervene, comment, or inquire about a judge’s decision to recuse from a case.

Recent Recusal Orders

In recent recusal orders, there have been notable instances involving judges in the Indian judiciary.

Additional Sessions Judge Arul Varma:
- In February, Judge Arul Varma recused himself from a case related to the 2019 Jamia Millia Islamia violence.
- He cited “personal reasons” for his recusal, which came less than a week after he discharged student activist Sharjeel Imam and 10 others in the case. The judge had made remarks referring to the accused as “scapegoats” and criticized the police for violating the rights of the accused. However, the Delhi High Court later set aside Varma’s order.
Justice Anup Jairam Bhambhani:
- In March, Justice Bhambhani of the Delhi High Court recused himself from hearing a plea by accused Asif Iqbal Tanha regarding the alleged leak of his confession statement by the Delhi Police to the media during the investigation into the 2020 Northeast Delhi riots “larger conspiracy.”
- Justice Bhambhani stated that no action by a court should have a detrimental impact on the credibility of the justice system. He emphasized the importance of a judge’s comfort level and independence in deciding whether to recuse from a case.

Global Legal Framework on Recusal

In contrast to India, other jurisdictions have specific rules or legal frameworks governing judicial recusals.

In the United States, there are well-defined laws on recusals.
- Title 28 of the U.S. Code outlines the grounds for the disqualification of justices, judges, or magistrate judges.
- Additionally, the American Bar Association’s Model Code of Judicial Conduct provides guidelines for recusals.
- These rules generally cover areas such as financial or corporate interests, prior involvement as a witness or lawyer in the case, and personal relationships with the parties.
- However, judges in the U.S. also have the discretion to recuse themselves voluntarily, which is known as sua sponte recusal.
In the United Kingdom, the law on judicial recusals has developed through judicial pronouncements.
- In the landmark case of R v. Gough, the “real danger” test was adopted as the applicable standard for recusal orders.
- This test required disqualification based on substantive and tangible evidence that conclusively demonstrated judicial bias and prejudice.
- However, the “real danger” test faced criticism, particularly because the European Convention on Human Rights only requires the “appearance of bias” to ensure fairness, without placing a burden on litigants to prove actual bias.
- Subsequently, a new test was formulated that considers the likelihood of bias from the perspective of a fair-minded and reasonable observer.