The CBI case has seen recusal of three judges in quick succession. First, Chief Justice of India Ranjan Gogoi recused on the ground that he will be a part of the committee that will select the next CBI chief. The matter next came up before Justice AK Sikri, who is the second senior-most judge in the Supreme Court, but he also recused. Earlier, it was Justice AK Sikri who was part of the panel that decided the fate of the then CBI Chief Alok Verma.  Thereafter, it had come to light that the government had recommended him to be a part of Commonwealth Secretarial Arbitral Tribunal (CSAT), to which Justice Sikri had given his consent in December 2018. After the media got a whiff of the matter, Justice Sikri withdrew the consent. As a result, the matter of Justice Sikri's recusal, the matter was placed before the third bench, but Justice Ramana has also recused from the CBI chief's matter. Recently, Justice UU Lalit had also recused from the Ayodhya matter. When recusals are going about in the Supreme Court, it is important to examine why they happen and if they can be avoided. Let us see what the law on recusal is.

FAIRNESS

Justice must not only be done but also seen to be done. This age-old adage is not only a mere saying but is also the principle by which the judicial system works. As the judges in the higher judiciary most likely have been lawyers themselves, at times there are cases before them, in which they had appeared for a party. In such circumstances, it is only fair, that the judge recuses from the matter so as to give the whole proceeding sense of fair play. Justice UU Lalit, recused from the Ayodhya case, as he had appeared for former chief minister of Uttar Pradesh Kalyan Singh in a contempt matter relating to the episode of 1992. Usually, this threshold is used with respect to private parties and not the government. For example, if a particular judge, who was appearing for the government before the elevation, will not be disqualified to hear cases in which the government to the party. However, judges should not hear those particular cases in which they have given prior assistance. This principle was clarified by the Supreme Court in Trishala v. M.V. Sundar Raj, (2010) 15 SCC 714 wherein it was held, “On the material placed on record we cannot hold that simply because the learned Judge whilst at the Bar was a Standing Counsel for the Municipal Corporation he is precluded either in law or on propriety from hearing any case in which a Corporator is a party in his personal capacity; more so, when the relevant facts were not brought to his notice.”

RECUSAL AS A STRATEGY

At times, a litigant when noticing that the case is not going in its favour prefers to seek recusal as a tactic. The underlining belief is that a new judge may understand the matter differently. At times, it is also a delaying tactic as the question of refusal will have to be answered first by the Court, and then only it proceeds on merits. Recusal as a strategy was sought to be used in the Sahara case but was blunted by the Apex Court. The Court said, “No allegation of bias was ever levelled by any of the contemnors, not even by the petitioner herein, before the hearing of the present writ petition. Despite prolonged hearings in the matters pertaining to the two Companies, which would directly affect the petitioner herein, no allegation of bias was ever levelled against this Bench hithertobefore. We are therefore, satisfied that the instant plea of bias is based on the petitioner's frustration arising out of being cornered into a situation wherefrom there is no escape.”

LITIGANT'S RIGHT TO SEEK RECUSAL

Every litigant has a right to bring to the Court’s notice any grounds for recusal. However, such application must very clearly state all such grounds which in the opinion of the litigant disentitles a particular judge from hearing the case. Constitutional Court in President of the Republic of South Africa [President of the Republic of South Africa v. South African Rugby Football Union, (1999) 4 SA 147 : 1999 ZACC 9] , on an application for recusal of four of the Judges in the Constitutional Court had held, “While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular judicial officers simply because they believe that such persons will be less likely to decide the case in their favour, than would other judicial officers drawn from a different segment of society. The nature of the judicial function involves the performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to ‘administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law’. To this end they 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.” This judgment of the South African Court has also been followed by Courts in India.

PRINCIPLES OF RECUSAL

In Supreme Court Advocates-on-Record Assn. v. Union of India (Recusal Matter), (2016) 5 SCC 808 it was said, “If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case.” It was also added, “that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.” The Judgment also held, “Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the impartiality of the Judge. The reasonableness of the apprehension must be assessed in the light of the oath of office he has taken as a Judge to administer justice without fear or favour, affection or ill will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or predisposition or unwarranted apprehensions of his image in public or difficulty in deciding a controversial issue particularly when the same is highly sensitive.”

REASONS FOR RECUSAL

Whether a judge should give reasons for recusal from a case? Yes.

The Supreme Court in Supreme Court Advocates-on-Record Assn. v. Union of India (Recusal Matter), (2016) 5 SCC 808 held, “Impartiality of a Judge is the sine qua non for the integrity institution. Transparency in procedure is one of the major factors constituting the integrity of the office of a Judge in conducting his duties and the functioning of the court. The litigants would always like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite the request, has not recused to hear his case. Reasons are required to be indicated broadly. Of course, in case the disclosure of the reasons is likely to affect prejudicially any case or cause or interest of someone else, the Judge is free to state that on account of personal reasons which the Judge does not want to disclose, he has decided to recuse himself from hearing the case.”

HOW DO WE STOP RECUSALS?

Recusing from a case, without there being an application from any party is something that can be avoided. The Cause List for any date is published a few days earlier. If any judge does not want to hear any particular matter, they can immediately communicate it to the Chief Justice. Thereafter, the Chief Justice can direct for the listing of the matter before another judge who is available to hear the case. In the age of media, it will be very naive to say that a judge accompanied by the staff, cannot know which case number pertains to what issue. Recusing on one’s own will from a matter in open court, not only wastes time but also negates the possibility of another case being heard. Processes, as many as possible outside the courtroom, must be performed outside only. It is the only way to make the judicial system run faster and better. 

 

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