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Content

• Understanding Recusals in detail
• What do the rules say?
• Some Recent Cases
• Analysis

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Understanding Recusals in detail

Recusal generally takes place when a judge has a conflict of interest or has a prior association with the parties in the case.

• For e.g. if a judge has equity shares in the company of one of the party involved or if the judge, in his lawyer days, had represented one of the parties in the case.
• Avoiding these conflicts of interest are at the heart of the rule of law.

The practice stems from the cardinal principle of due process of law that nobody can be a judge
in her own case.

What do the rules say?

• There are no written rules on the recusal of judges from hearing cases listed before them
  in the constitutional courts. It is left to the discretion of a judge.
• The reasons for recusal are not disclosed in an order of the court. It is either orally conveyed to the lawyer or no reasons are given. It depends on the conscience of the judge.
• Sometimes, the parties involve also raise the apprehensions about a possible conflict of interest.

A recusal inevitably leads to delays as the case goes back to the Chief Justice, who has to constitute a fresh Bench.

Should the reasons be put on record?

• In a separate opinion in the NJAC judgement 2015, Justice Kurian Joseph, who was a member of the Constitutional Bench, highlighted the need for judges to give reasons for recusal as a measure to build transparency.

Some Recent Cases

• Penniyar River Dispute case and Krishan Water Dispute case.
• Judge Loya Case, 2018
  • Petitioners sought the recusal of Supreme Court judges, Justices A.M. Khanwilkar and D.Y. Chandrachud, from the bench as they both hailed from the Bombay High Court.
  • The court refused the request and called it a “Wanton Attack”. The court observed that ‘Recusal would mean abdication of duty’.
• Assam Detention Case, 2019
  • In the middle of a PIL filed by activist Harsh Mander about the plight of inmates in Assam’s detention centres, the then-Chief Justice Ranjan Gogoi was asked to recuse himself. In a lengthy order, Justice Gogoi said a litigant cannot seek recusal of the judge. The Court Observed “Judicial functions, sometimes, involve performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision. If the assertions of bias as stated are to be accepted, it would become impossible for a judge to seek clarifications and answers”

Analysis

Arguments against involuntary recusal: Such recusals would set up a dangerous precedent for future litigants to cherry pick their benches and coerce judges they find unfavourable into stepping down. Such a position would severely undermine the administration of justice in the Indian legal system.