UNDERSTANDING JUDICIAL RECUSAL

Recently a sensational matter appeared in several newspapers and electronic media across the country about a Supreme Court Judge, Justice Aniruddha Bose who recused himself from the hearing of a case related to the chief minister of West Bengal Mamta Banerjee and the State law minister Moloy Ghatak linked to their role in the Narada sting tapes case. Earlier on June 18th, another Supreme Court Judge, Justice Indira Banerjee had recused from hearing a petition seeking a CBI probe into the killing of two BJP workers during post-poll violence in the State of West Bengal and expressed her “Personal difficulties” in taking up the case. The people of the country were stunned and surprised on the stand taken by the Judges who are functioning in the constitutional court which is the Apex Court of the Country and extremely keen to know as to what was the reason or circumstances of recusal and under which authorities this privilege is granted to the Judges?

Rules on the Recusal:-

There is no written rule on the recusal of the Judges from hearing cases listed before them in the constitutional courts. It is left to the discretion of the Judges. The reason for recusal is not disclosed in any order of the court. Some Judges orally convey to the lawyers involving in the case their reasons for recusal but many Judges do not disclose the reason for their recusal. The decision rests on the conscience and wisdom of the Judge. In the case of Supreme Court Advocate-on-Record Association Vs. Union Of India W.P (Civil) no.13 of 2015 Justice Kurien Joseph (Retd.) who was a member of the constitution bench, has highlighted the need for Judges to give reasons for recusal as a measure to built transparency. He remarked in his order that “It is the constitutional duty, as reflected in one's oath to be transparent and accountable, and hence, a Judge is required to indicate the reason for his recusal from a particular case”. Another companion Judge who was also part of the constitution bench agreed that specific rules are required to be framed on recusal. 

Can litigating party seek recusal of a Judge:- 

In the case when litigating parties raised apprehension about a possible conflict of interest, can seek recusal of a Judge from the hearing of a case but it’s rarely accepted. Recusal of a particular Judge who is hearing the case on the ground that the particular Judge has, in the past, appeared for one of the party involves in a case or if the case pertains to a company in which a Judge holds stake such apprehension would seem reasonable and prayer for recusal by a litigating party may seem right. A recusal inevitably leads to a delay because the case goes back to the Chief Justice who shall thereupon constitute a fresh bench for disposal of the case. In the Assam detention center case, in the middle of the hearing of the case, a PIL was filed seeking recusal of Justice Ranjan Gogoi from the case. While refusing to recuse it was observed that “Judicial functions sometimes involve the performance of an unpleasant and difficult task which requires asking questions and answer to arrive at a just and fair decision. If the assertions of bias as stated are to be accepted it would become impossible for a Judge to seek clarifications and answers. 

In the case of  “Indore Development Authority Vs. Manohar Lal SLP (Civil) no.19 of 2018, some lawyers who were arguing the case, requested Justice Arun Mishra to recuse from the bench on the ground that he was the member of the bench which has formulated the question of law and referred the same to this constitutional bench. While refusing to accept the request Justice Arun Mishra said “accepting the wishes of the parties to recuse himself would sound the death knell for judicial independence. He also observed that it would be a grave blunder on his part to bow out”.

Conclusion:- 

It is true that there are no specific rules that are made to govern the process of recusal and every decision on the recusal is rests upon the discretion and wisdom of the concerned Judge which may or may not sometimes seem to be reasonable. Therefore in order to maintain the trust and faith of the common people in the judicial system and also to preserve the transparency in the whole process, it is necessary and appropriate to give a reason for recusal so the people of the country could aware of the background of such recusal.

*By Mahesh Tiwari Advocate