RECUSAL OF JUDGES (Syllabus: GS Paper 2 - Polity)

Context: Supreme Court judge withdrew from hearing a petition for bail filed by former Jawaharlal Nehru University student leader in an Unlawful Activities (Prevention) Act (UAPA) case linked to the February 2020 Delhi riots case.

• The lead judge on the Division Bench referred the case back to the Chief Justice of India for listing it before another Bench of the Supreme Court on August 17.

Recusal of Judges

• About: Recusal, referred to as Judicial disqualification, 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.

• Based on Principle of natural Justice: The genesis of the concept of recusal of judges can be traced from the principle that implies fairness, reasonableness, equity and equality i.e., Natural Justice. 
• According to this principle, the judge must not have any interest in the subject-matter of the case.
• Reasons: When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception that she carried a bias while deciding the case. 
• The conflict of interest can be in many ways - from holding shares in a company that is a litigant to having a prior or personal association with a party involved in the case.
• Another instance for recusal is when an appeal is filed in the Supreme Court against a judgement of a High Court that may have been delivered by the SC judge when she was in the HC.
• Process for recusal: There are no formal rules governing recusals, although several Supreme Court judgments have dealt with the issue.
• The decision to recuse generally comes from the judge herself as it rests on the conscience and discretion of the judge to disclose any potential conflict of interest. 
• In some circumstances, lawyers or parties in the case bring it up before the judge. 
• If a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.
• Record of reasons for recusal: Since there are no formal rules governing the process, it is often left to individual judges to record reasons for recusal. 
• Some judges disclose the reasons in open court; in some cases, the reasons are apparent.

• Limitations: Once a request is made for recusal, the decision to recuse or not rests with the judge. 

• While there are some instances where judges have recused even if they do not see a conflict but only because such an apprehension was cast, there have also been several cases where judges have refused to withdraw from a case.

SC’s View

• 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 needs to look at the mind of the party before him, and decide that he is biased or not.
• Supreme Court Advocates-on-Record Association v. Union of India (2015): Justice J. Chelameswar in his opinion in this case held that “Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken”.