According to Black’s Law Dictionary, recusal is the removal or voluntary withdrawal of a Judge or policymaker from a particular matter, typically due to a conflict of interest, bias, or prejudice.
The foundation of any justice system relies entirely on public trust — a trust that shatters the moment impartiality is questioned. To protect this integrity, the legal system relies on a crucial mechanism: judicial recusal.
According to Black’s Law Dictionary, recusal is the removal or voluntary withdrawal of a Judge or policymaker from a particular matter, typically due to a conflict of interest, bias, or prejudice.1 It serves to ensure the fairness and impartiality of legal proceedings by disqualifying individuals with a vested interest.2
A matter of discretion: Why guidelines cannot dictate recusal
While the concept is straightforward, its application is nuanced. Can the courts be forced to follow strict, uniform guidelines for when a Judge must step down?
The Supreme Court in Chandra Prabha v. Union of India3, where a writ petition under Article 32 was filed and a prayer was framed to issue an appropriate writ, order or direction for laying guidelines under Article 142 of the Constitution of India governing the recusal of Judges, including the requirement to provide reasons for recusal, and the stage at which it should be made or asked for.
A Supreme Court Bench led by Abhay S. Oka and Ujjal Bhuyan JJ.held that as far as the recusal of the Judges is concerned, it is a matter of discretion for the Judges concerned of the Constitution of India cannot be exercised for laying down guidelines governing the recusal of Judges. Hence, the writ petition is dismissed.142 of the Constitution of India cannot be exercised for laying down guidelines governing the recusal of Judges. Hence, the writ petition is dismissed.
Recusal in practice
We can see this discretionary power exercised routinely to maintain the highest ethical standards. Recently, in Alchemist Asset Reconstruction Co. (P) Ltd. v. Raju Chappakal Pappu4, Justice K.V. Viswanathan recused from a Bench led by Justice Pardiwala after arguments were heard and before the pronouncement of judgment. Justice K.V. Vishwanathan noticed that he had appeared for Alchemist Asset Reconstructions, the appellant, in a corporate insolvency resolution process against the corporate debtor. While recusing, the Bench ordered that — this matter be listed before any other Bench as may be directed by the Chief Justice of India.
The mechanics of the court: The master of the roster
To understand how recusal works practically, one must understand how cases are assigned. In the Indian judicial system, the Chief Justice of the High Court or the Chief Justice of India of the Supreme Court is the master of the roster. In the District Court, the learned District and Sessions Judge assigns the matters to the respective Judges.
The master of the roster holds the administrative power to decide which categories of matters are assigned to which Judges. This roster is dynamic and may be updated quarterly or biannually.
Nemo judex in causa sua
When any matter assigned to a Bench in which the particular Judge noticed (at any stage) that he or she has any conflict of interest in the matter, he or she has appeared on behalf of any of parties (any of the petitioners or any of the respondents) in the court below, the counsel appearing [be it of petitioner(s) or respondent(s)] is his or her family members, relatives or close friends , then the Judge may recuse from hearing the matter. It is the Judge on his/her own who has to recuse.5 The learned Judge may then refer the matter to the Chief Justice to list the matter before any other Bench. The foundational principle for recusal is nemo judex in causa sua (No one should be a Judge in their own cause).
The threat of Bench hunting: Can a litigant demand a recusal?
Can a petition or application be filed for recusal of a Judge in particular on grounds of alleged bias?
This question has been dealt with in Indore Development Authority (Recusal Matter-5 J.) v. Manohar Lal6, in the matter of seeking the recusal of Justice Arun Mishra, on the ground that Justice Mishra was heading a Constitution Bench meant to re-examine a legal interpretation he had previously delivered in a three-Judge Bench decision in Indore Development Authority v. Shailendra7. Landowners argued his prior involvement created a “legal predisposition” and a “reasonable apprehension of bias”.8 His Lordship Justice Arun Mishra while declining to recuse held—
31. Recusal has been prayed for on the ground of legal predisposition. Where recusal is sought on the ground, various questions arise for consideration. Firstly, legal predisposition is the outcome of a judicial process of interpretation, and the entire judicial system exists for refining the same. There is absolutely nothing wrong in holding a particular view in a previous judgment for or against a view canvassed by a litigant. No litigant can choose, who should be on the Bench9. He cannot say that a Judge who might have decided a case on a particular issue, which may go against his interest subsequently or is part of a larger Bench should not hear his case. Furthermore, if a party or his counsel can at length argue on the question of recusal of the Judge before him, he can also successfully question the correctness of a judgment rendered by him. A litigant has got the right to make arguments which suit his cause before a Judge/Judges having taken a contrary view earlier.
Moreover, if it is open to one litigant to seek recusal and recusal is permitted, then the right has to be given to the opposite party to seek recusal of a Judge who may have decided a case against his interest. In case it is permitted to either side, that would end judicial independence. Then parties will be choosing Benches to their liking. In that case, the Judges holding a view can be termed to be disqualified. In case the submission of recusal is accepted, the Judges having either side view, cannot hear the matter and have to recuse from hearing. In that case to find neutral Judges would be difficult to find and that would subvert to the very concept of independent judicial system. If litigants are given the right to seek recusal of a Judge on the ground that in a smaller Bench, a view has been taken by the Judge, the correctness of which has to be decided by the larger Bench, which includes the same Judge, then on a parity of reasoning recusal might be sought on the ground of the Judge having taken a view one way or the other even in a different case in which similar issues are involved if the Judge has decided similar issues earlier, in the same court or in a different court. This would open the floodgates of forum shopping. Recusal upon an imagined apprehension of legal predisposition would, in reality amount to acceding to the request that a Judge having a particular view and leanings in favour of the view which suits a particular litigant, should man the Bench. It would not only be allowing Bench hunting but would also be against the judicial discipline and will erode the confidence of the common man for which the judicial system survives.
34. If requests for recusal are acceded to for the asking, litigants will be unscrupulously taking over the roster-making powers of the Chief Justice and that would tantamount to interference with the judicial system, by the mighty to have a particular Bench by employing several means and putting all kinds of pressures from all angles all around. It is the test of the ability of the judicial system to withstand such onslaught made from every nook and corner. Any recusal in the circumstances is ruled out, such prayer strengthens the stern determination not to succumb to any such pressure and not to recuse on the ground on which recusal is sought because for any reason, such a prayer is permitted, even once, it would tantamount to cowardice and give room to big and mighty to destroy the very judicial system. Moreover, recusal in such unjustified circumstances, would become the norm.
The Code conduct that keeps the scales balanced
Recusal is just one specific mechanism within a much broader, overarching Code of judicial ethics.10 To ensure that “justice must not merely be done but it must also be seen to be done”, the Supreme Court of India in its Full Court Meeting held on 7 May 1997 unanimously resolved and adopted how a judicial life should be11—
1. Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
2. A Judge should not contest the election to any office of a club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.
3. Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
4. A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
5. No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.
6. A Judge should practice a degree of aloofness consistent with the dignity of his office.
7. A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
8. A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.
9. A Judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.
10. A Judge shall not accept gifts or hospitality except from his family, close relations and friends.
11. A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.
12. A Judge shall not speculate in shares, stocks or the like.
13. A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business.
14. A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.
15. A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt on this behalf must be resolved and clarified through the Chief Justice.
16. Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but illustrative of what is expected of a Judge.
*Advocate-on-Record, Supreme Court of India. Author can be reached at: nishantvermaadv4513@gmail.com.
1. Dmitry Bam, “Making Appearances Matter: Recusal and the Appearance of Bias” (2011) (4) Brigham Young University Law Review, 943.
2. Charles Gardner Geyh, “Why Judicial Disqualification Matters Again” (2011) 30 Rev. Litig. 671.
5. John P. Frank, “Disqualification of Judges” (1947) 56 Yale LJ 605.
6. (2020) 6 SCC 304, 338-340.
8. Supreme Court Advocates-on-Record Assn. (Recusal Matter) v. Union of India, (2016) 5 SCC 808 : (2016) 3 SCC (Civ) 492 : (2016) 3 SCC (Cri) 173 : (2016) 2 SCC (L&S) 253.
9. Kamini Jaiswal v. Union of India, (2018) 1 SCC 156 : (2018) 1 SCC (Cri) 297.
10. Dane Thorley, “The Failure of Judicial Recusal and Disclosure Rules: Evidence from a Field Experiment” (2023) 117(5) Northwestern University Law Review 1280, 1277—1350.
11. Press Release, Press Information Bureau, Ministry of Law and Justice, Code of Conduct for Judges, Supreme Court of India, “Restatement of Values of Judicial Life” (Adopted in the Full Court Meeting on 7-5-1997) December 5, 2024, available at <https://www.pib.gov.in/PressReleasePage.aspx?PRID=2081112®=3&lang=2>.
