Context:
Recently, a Supreme Court (SC) judge recused herself from hearing a writ petition filed by Bilkis Bano against a Gujarat government decision to prematurely release 11 men sentenced to life imprisonment for gang-raping her during the 2002 riots.
Relevance:
GS II: Polity and Governance
Dimensions of the Article:
- About Recusal
- What is the Process of Recusal?
- Issues with recusal
About Recusal
- It 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.
- Recusals are not subject to any official regulations, but the topic has been addressed in a number of SC decisions.
- In Ranjit Thakur v Union of India (1987), the SC held that the test of the likelihood of bias is the reasonableness of the apprehension in the mind of the party.
- The judge must consider the perspective of the party in front of him and determine whether or not he is biassed.
Reason for Recusal:
- A judge can decline to consider a case when there is a conflict of interest in order to avoid giving the impression that he was biassed in his decision.
- Conflicts of interest can arise in a variety of ways, including:
- Being previously or personally associated with one of the parties in the case.
- Participated in a case on behalf of one of the parties.
- Interpersonal conversations with other lawyers or non-lawyers.
- A High Court (HC) decision that the SC judge may have issued while serving on the HC is the subject of an appeal filed with the SC.
- In a matter of a company in which he holds shares unless he has disclosed his interest and there is no objection to it.
- The practice stems from the cardinal principle of due process of law that nobody can be a judge in her own case.
What is the Process of Recusal?
- Since it is up to the judge’s conscience and discretion to reveal any potential conflicts of interest, the decision to recuse usually comes from him or her.
- Many judges do not explain their reasons for recusing themselves orally to the attorneys involved in the case. Some give the causes in chronological order.
- In some cases, the judge is informed about it by the attorneys or parties involved. The judge has the discretion to withdraw himself or herself after receiving a request for it.
- While there have been occasions where courts have refused to withdraw from a case even though they do not see a conflict but only because such a suspicion was raised, there have also been cases where judges have done so in some cases.
- If a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.
Issues with recusal
- Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
- In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
- It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.
- Some requests for recusal are made with the intent to intimidate the court or to get better of an ‘inconvenient’ judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice.
-Source: The Hindu
