Judges and Recusal

“I am sorry, please recuse me before I hurt myself.”

I. Introduction

a) The principle of judicial independence is designed to protect the system of justice and the rule of law as well as to maintain public trust and confidence in the courts. Its existence in any legal system, however, depends on concrete institutional arrangements. Various scholars have identified essential ingredients which ensure judicial independence in a legal system: firstly, insularity, secondly, impartiality and thirdly, authority. An independent judiciary surrounded by powerful executive forces remains insulated from there destructive elements maintaining its individual, distinct and independent identity. The elements of “insularity” for an independent judiciary include: (i) appointment and removal of Judges; (ii) security of tenure; (iii) protection of salary; and (iv) administrative and financial autonomy. Impartiality is another important facet of judicial independence where Judges are supposed to take decision only on the basis of law and fact and without any fear or favor. Finally, authority which includes element of public confidence, its relation with the media, etc.

b) Alan Rose, a former President of the Australian Law Reform Commission once observed: justice, and the appearance of that justice being delivered, is fundamental to the maintenance of the rule of law. Justice implies – consistency, in process and result, that is, treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness, by allowing parties the opportunity to prevent their case and to answer contrary allegations, and unbiased neutral decision-making; dignified, careful and serious decision-making and an open and reviewable process[1].

c) One essential component of equal justice under the law is a neutral and detached Judge to preside over the court proceeding. Public confidence in the legal system is maintained when a Judge has no interest in the parties, advocates or subject-matter of litigation. To disqualify or remove oneself as a Judge over a particular proceeding because of one’s conflict of interest or recusal or the Judge’s act of disqualifying himself or herself from presiding over a proceeding, is based on the maxim that Judges are charged with a duty of impartiality in administering justice.

d) Judicial impartiality is a significant element of justice. Judges should decide legal disputes free of any personal bias or prejudice. As a result of a conflict of interest, a Judge may be unable to maintain impartiality in a case and thus should be disqualified. Even where a Judge is impartial, but appears not to be, recusal is necessary[2].

It is one of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge. It all started with a latin maxim nemo judex in re sua which means literally — that no man shall be a Judge in his own cause. There is another rule which requires a Judge to be impartial. The theoretical basis is explained by Thomas Hobbes in his Eleventh Law of nature:  If a man be trusted to judge between man and man, it is a precept of the law of nature that he deals equally between them. For without that, the controversies of men cannot be determined but by war. He therefore, said that is partial in judgment doth what in him lies, to deter men from the use of Judges and arbitrators; and consequently, against the fundamental law of nature, is the cause of war[3]. 

e) A Judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist. He should recuse himself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that he might not bring an impartial mind to the resolution of the question he is required to decide. The standard for recusal is one of “real and not remote possibility”, rather than probability. The test is a two-stage one. The Judge must consider firstly, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the Judge might decide the case other than on its merits; and secondly, whether there is a “logical and sufficient connection” between those circumstances and that apprehension[4].

II. The concept of recusal

a) It is a basic precept that no one should be a Judge in his or her own case. Courts must keep the promise of dispensing fair and impartial justice, and must decide controversies without bias. The practice of recusal i.e., when and how an individual justice should be excluded from participating in a specific case, where he has some interest—has been a regular topic of passionate debate since the founding in the United States of America and United Kingdom[5].

b) Recusal is “removal of oneself as a Judge or policymaker in a particular matter, especially because of a conflict of interest”[6].

c) The doctrine of judicial recusal enables, and may require, a Judge who has been, appointed to hear and determine a case to stand down from that case and leave the disposition of it to another colleague or colleagues. The judicial oath in England and Wales, widely echoed in the common law world, is to do justice without fear or favour, affection or ill-will. Fear and favour are the enemies of independence, which is a state of being[7].

d) Affection and ill-will undermine impartiality, which is a state of mind. But independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them. That makes the law relating to recusal a serious business.

III. The reason for recusal

It is simple, a Judge has a duty of fairness when imparting justice and making judgments as they preside over a case. Thus, at the time a Judge learns of their assignment to a case, the Judge should review the facts of the case and decide whether there are any conflicts of interest regarding the case that would prevent them from being able to be impartial, ethical, and fair. Some examples of conflicts of interest where a Judge should likely recuse themselves from the case include: personal connection to one of the parties to the case, personal knowledge of the facts of the case, familial relationship to one of the attorneys and financial interest in the result of the case and other.

IV. Kind of recusal

Two kinds of recusal are possible. One is the automatic recusal, where a Judge himself withdraws from the case. The second is when one of the parties points to possible bias or personal interest of the Judge in the case and requests a recusal. In India, the prerogative of recusal is vested in the Judge. No Judge can be forced to withdraw from a case by another party.

V. Pecuniary bias interest

a) A pecuniary (bias) interest, however small it may be, disqualifies a person from acting as a Judge. Other types of bias, however, do not stand on the same footing and the courts have, from time to time, evolved different rules for deciding whether personal or official bias or bias as to subject-matter or judicial obstinacy would vitiate the ultimate action/order/decision. It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as an automatic disqualification. In such a case the law assumes bias. What interest short of that will suffice? It is, thus, evident that the English Courts have applied different tests for deciding whether non-pecuniary bias would vitiate judicial or quasi-judicial decision. Many Judges have laid down and applied the “real likelihood” formula, holding that the test for disqualification is whether the facts, as assessed by the court, give rise to a real likelihood of bias. Other Judges have employed a “reasonable suspicion” test, emphasising that justice must be seen to be done, and that no person should adjudicate in any way if it might reasonably be thought that he ought not to act because of some personal interest. The five members of the Bench speaking through Gleeson, C.J., referred to the test applied in Australia in determining whether a Judge was disqualified by reason of the appearance of bias i.e. whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question require to be decided and gave the following reasons for making a departure from the test applied in England. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the Tribunal has pre-judged the case, they cannot have confidence in the decision. The hypothetical reasonable observer of the Judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some Judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional Judge whose training, tradition and oath or affirmation require (the Judge) to discard the irrelevant, the immaterial and the prejudicial[8].

b) Principles governing such pecuniary bias interest:The principles which governs such biasness are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but it must not be seen to be inclined. A person having interest in the subject-matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject-matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the court has to consider whether a fair-minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the “real likelihood” test has been preferred over the “reasonable suspicion” test and the courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries.[9]

VI. Practice of recusal in India

a) In India there is no statute laying down the minimum procedure which Judges must follow in order to ensure the impartiality. However, courts have always insisted that Judges and other adjudicatory authorities must ensure that they have to ensure principles of impartiality.

b) The principles of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and rule of law prevailing in the community.[10]

c) In order to protect himself against the excesses of organised power man has always appealed to someone beyond his own creation. Such someone could only be God and his laws could only be divine law or natural law to which all temporal laws and actions must conform. This was the origin of the concept of natural justice. It implies fairness, reasonableness, equity and equality. Though the Indian Constitution does not use this expression, the concept divested of all its metaphysical and theological trappings pervades the whole scheme of the Constitution.[11]

d) Duty to act fairly and impartially is ingrained in Articles 14 and 21 of the Constitution. Indian courts have nourished these values with reference to administrative decision-making and emphasised on the test of “real likelihood of bias”. What is relevant according to Supreme Court is the reasonableness of the apprehension in that regard in the mind of the party. Hence the proper approach in case of bias for the court is not to look into his own mind and ask “am I biased?” but to look into the mind of the party before it. However, when it comes to applying these standards on Judges of the constitutional courts, law is not very clear. The cases of recusal have come in the recent past; however, there is no set principle as to when and how this principle should be followed. In India two methods are normally being practiced, first; automatic recusal and second; If no one objects, a Judge may proceed with the matter.

e)Litigant cannot question a Judge on bias”: A litigant cannot seek recusal of the Judge during a hearing, the Supreme Court has said. “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 are to be accepted, it would become impossible for a Judge to seek clarifications and answers,” a Bench led by the Chief Justice of India, Ranjan Gogoi observed in a recent order. The order was based on a plea by activist Harsh Mander seeking the recusal of the CJI from his PIL highlighting the plight of inmates in Assam’s detention centres for illegal immigrants. Refusing to recuse, Chief Justice, Gogoi said, “a litigant should not be permitted and allowed to question a Judge on perceived bias especially after hearing has commenced and orders on different dates have been passed”. The decision to recuse is solely the Judge’s own. “Normally, this should be left to the Judge himself who is bound by the oath of office to administer justice to all persons alike without fear, favour and prejudice. The litigant, without any firm basis, cannot be permitted to raise such objection on the basis of the court hearing,”, Chief Justice, Gogoi observed in the order. If a Judge recuses on the word of the litigant, it may fall into a practice and would descend into forum-shopping, the Bench said.[12]

f) Further recusal is “removal of oneself as a Judge or policymaker in a particular matter, especially because of a conflict of interest.” Duty to act fairly and impartially is ingrained इन Articles 14 and 21 of the Constitution. Article 14 guarantees to all person equality before the law and equal protection of the laws. Article 21 confers on every person the fundamental right to life and personal liberty. It is the most fundamental of human rights. The basic principle of judicial conduct is in taking the oath of office, Judges, both of the Supreme Court and of the High Courts, promise to perform their duties, to deliver justice, “without fear or favor, affection or ill-will”.

VII. Conclusion

It cannot be said that wrongdoing by Judges will not be presumed. It does not also necessarily follow that one should turn his back on the considerable value of judicial self-regulation. There must surely be a practical and publically palatable balance between absolute autonomy for the Judges and annihilative accountability. Judiciary is not yet beyond self-redemption. Justice should not be left at the mercy of individual whosoever it may be. There is a need in India of a model code of conduct on the pattern of United States, which will ensure the impartiality of Judges and in turn will improve the confidence of people in the institution.

However, recusal is not an instance where the judiciary is under threat as the aggrieved party would like to know why a Judge has been recused. There are some Bills pending in Parliament regarding this, but nothing fruitful has been done so far. If the parliamentary process fails, this can be used as an opportunity by the judiciary for a self-reflection, as it has done before. Even if that fails, there could be measures like High Court Judges being appointed to a different State from where they practised as lawyers and English as the medium of communication would be of help. Expecting the High Court lawyers and Judges to understand and speak English is not an irrational expectation. The Judges who were earlier a part of the Bar would not be under pressure to ensure that they keep the senior lawyers happy. Bar Councils and other associations are vested with enough powers to ensure that Judges give the reasons for recusal as a matter of mandatory requirement. It is the duty of Bar to ensure their client knows why the Judge has been recused from their specific matter. There has to be a requirement of statutory obligation on the Judges to inform the litigants as to why there is a decision to recuse from hearing. Recusal should be used sparingly like the emergency provision in the Indian Constitution.

*****


  Civil Judge (Senior Division).

[1] Alan Rose, ‘The Model Judiciary – Fitting in with Modern Government’, 4 the Jud. Rev. 323 at 326 (1999)

[2] Model Code of Judicial Conduct –Canon 3-E (1990)

[3] (2016) 5 SCC 808 .

[4] Saxmere Co. Ltd. v. Wool Board Disestablishment Co. Ltd, 2009 NZSC 72.

[5] Jeffrey W. Stempel, “Rehnquist, Recusal, and Reform”, 53 Brook L. Rev. 589 at 621-627 (1987).

[6] Black’s Law Dictionary, 1303 (8th edn., 2004).

[7] Grant Hammond, Judicial Recusal: Principles, Process and Problems, Bloomsbury Professional.

[8] P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC 380.

[9] S.C. Kainthla v. State of H.P, 2019 SCC OnLine HP 561.

[10] K.I. Shephard v. Union of India, (1987) 4 SCC 431,488.

[11] Ranjit Thakur v. Union of India, (1987) 4 SCC 611.

[12] The Hindu New Delhi, 13-5-2019

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