Judges must give their reasons in writing for recusing themselves from specific cases.
What are the recent cases of recusal?
Recusal is the process of a judge stepping down from presiding over a particular case in which the judge may have a conflict of interest.
In a recent case, challenging the appointment of M. Nageswara Rao as interim director of the CBI, three judges have recused themselves. Click here to know more on the issue.
First Chief Justice Ranjan Gogoi disqualified himself, purportedly because he was set to be a part of the selection committee tasked with choosing a new CBI Director.
He then assigned a bench presided by Justice A.K. Sikri to hear the case.
But Justice Sikri too recused, on grounds that he was part of a panel that removed the previous CBI Director Alok Verma from his post.
Next, Justice N.V. Ramana recused himself for apparently personal reasons.
However, none of these orders of recusals was made in writing.
Apart from the CBI case, recently Justice U.U. Lalit recused himself from hearing the dispute over land in Ayodhya.
This is because the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest.
Hence, the judge expressed his disinclination to participate in the hearing any further.
Even in this case, there is no written order specifically justifying the recusal.
Hence, it’s difficult to tell whether the disqualification was really required.
What are the concerns?
Undermining judicial independence - In taking oath of office, judges of both the Supreme Court and the high courts, promise to perform their duties, to deliver justice, “without fear or favour, affection or ill-will”.
However, there are many cases where the litigants suggest that the judge should recuse himself from the particular case.
But this will allow litigants to cherry-pick a bench of their choice, which impairs judicial fairness.
Also, the purpose of recusal in these cases undermines both independence and impartiality of the judges.
Difference interpretations - There is a rule that no person should be a judge in her own cause.
But there are cases where somebody else’s cause becomes the judge’s own as case proceeds.
Also, there are some cases where judge has appeared for one of the litigants at some stage in the same dispute.
Even then, as there are no rules to determine when the judges could recuse himself in these cases, different interpretations remain.
Absence of rules - In disputes where a judge has a financial interest in the litigation, where a judge owns shares in a company which is party to the case, the fact of owning shares is considered a disqualification.
However, when a judge owns shares in one of the litigants, he should be allowed to disclose the fact before the litigants.
If neither party objects, the judge should be allowed to hear the case.
But in the absence of a well-defined rule that helps establish a basic standard, a decision of this kind can prove troubling somewhere down the line.
Also, when judges choose without a rational motive, without expressing their decisions in writing, they hurt the very idea of judicial rectitude.
Along with that, a judge refusing the recusal in a case, despite the existence of bias in his/her judgement, is equally destructive.
What should be done?
Recusals should not be used as a tool to manoeuvre justice, as a means to picking benches of a party’s choice, and as an instrument to evade judicial work.
Judicial officers must resist all manner of pressure, regardless of where it comes from.
This is the constitutional duty common to all judicial officers.
If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself.
Hence, a rule that determines the procedure for recusal on part of judges should be made at the earliest.
