Recently, Indian judiciary is witnessing an increase in judges choosing not to hear cases without providing any valid reasons, which has became a subject of criticism and concern. Judicial disqualification, referred to as recusal, is the act of abstaining from participation in an official action such as legal proceeding due to conflict of interest of the presiding court official or administrative officer. Although recusal by a judge is not something unprecedented, but it should not be used as a tool to avoid justice or judicial responsibility. There are opinions that the reasons for recusal should be stated by judges so that people may know the reason and there may not be any room for attributing any motive for the recusal. It will not only make judges transparent and accountable but would also help curb the tendency for forum shopping.
On the contrary, there are opinions that a judge might have recused because of some personal reasons—which need not be disclosed—based on a judge’s conscience and his/her perception of possible conflict of interest, and it depends upon a judge.
Recent Case
Navlakha, a rights activist, filed a petition in the Supreme Court, challenging the Bombay High Court’s rejection of his plea to quash the FIR against him in the Elgaar Parishad–Bhima Koregaon violence case in Pune. The petition came up before a bench, headed by the former Chief Justice of India, Ranjan Gogoi, who recused himself without ascribing any reason. Next day, it was listed before the bench of Justices N.V. Ramana, R. Subhash Reddy, and B.R. Gavai. These three judges also recused themselves. Thereafter, it was listed before a bench, headed by Justice Mishra. However, he also declined to hear the petition.
Possible Reasons
In general, judges recuse in specific instances because there is an apparent conflict of interest like holding shares in a company that is a party to the case; or when a lawyer or a party involved in the case is personally known to the judge; or when a judge has dealt with the case in a lower court.
Some Importan Recusals
* On April 28, 2011, justice D.K. Jain and H.L. Dattu recused from hearing then Sikkim HC chief justice P.D. Dinakaran’s petition seeking a stay on Rajya Sabha appointed inquiry panel against him.
* On March 2, 2012, bench of justice H.L. Dattu and C.K. Prasad chose not to hear a petition challenging the validity of the USD 8.5 million claim energy—Vedanta deal.
* On March 8, 2016, justice J. Chelmeshwar recused from a case related to Bangalore blasts in which Abdul Nazir Mandony was accused.
* On March 9, 2016, justice A.R. Dave’s bench expressed its inability hearing activist Teesta’s anticipatory bail plea and referred it to CJI for listing it before another bench.
* On March 10, 2016, justice V.G. Gowda recused from hearing CBI’s plea challenging May 2010 Allahabad HC verdict dropping criminal conspiracy charge against BJP leader L.K. Advani in Babri Masjid case.
Criticism of Recusal
Every judge, either from the Supreme Court or the High Court, promises, while taking the oath, to perform their duty and to deliver justice without fear or favour, affection or ill-will’. However, in many cases, litigants suggest that the judge should recuse himself from a particular case and cherry-pick a bench of their choice, which impairs judicial fairness. Thus, independence and impartiality of judges are undermined.
Besides, no person should be a judge in his/her own cause. There are cases when a cause becomes a judge’s cause with the passage of time. It also happens that a judge has appeared for one of the litigants in an earlier court and absence of rules as to when the judges could recuse themselves in such cases is a matter of concerns.
Some Suggestions
The issue of recusal is not as simple as it appears. Since the instances of recusal are frequently increasing, some procedural and substantive rules should be framed to avoid embarrassment to other judges on the bench. Judges must resist any kind of pressure from anywhere as a common constitutional duty. Therefore, rules, determining the procedure for recusal, should be framed forthwith.