INTRODUCTION:
A Judge while conducting a court proceeding must always strive to precisely interpret the meaning, prominence, and implications of the law. He/she must also acknowledge the fact that justice requires more than just an interpretation and application of the law. It is important to show fairness and understanding towards both the parties of a case. In India a Judge, while assuming office, takes an oath as prescribed under Schedule III of the Constitution[1]. Having taken the oath, the Judge is expected to perform his duties without any fear, affection, or an ill will.
If a judge does not discharge his or her duty with utmost sincerity and leaves the door open for business to affect the decision-making process then under such circumstances he/she can be removed from hearing that particular case. A Judge must always conduct proceedings without having any personal interest in the outcome of the litigation since otherwise it is likely to hamper the judgment of the case. Therefore, for the sake of a fair trial, a judge may ‘Recuse’ himself from the adjudication of a particular matter.
WHAT IS RECUSAL?
Recusal means removing oneself as a judge or a policymaker in a particular case, generally because of a conflict of interest. This concept of judicial recusal helps and may require a judge who has been assigned a case, to step down and withdraw from that case and leave it for another colleague to hear the proceedings.
The concept of recusal is of significant use since it helps the pillars of independence and fairness to stand upright. For example, if there comes up a matter that questions the actions of a company in which the Judge himself holds shares, then it may be reasonably apprehended by the other party for a possible conflict of interest and thus in such a case, the call for recusal may seem correct.
THE DOCTRINE OF RECUSAL IN INDIA:
In our country, there is no written procedure which the judges need to follow for ensuring an impartial behavior. However, Judges are always insisted by the courts towards which they are duty-bound; to always keep in mind the Principle of Natural justice while giving out any order. Their duty to act impartially and fairly has its roots in Article 14 and 21[2] of the Indian Constitution. Now, the two crucial aspects of the rule against bias are that Judge who is adjudicating on a matter must have no pecuniary or propriety interest in the outcome of the proceedings and also, must not act in any manner which limits the chances of one party to prove itself to be innocent. The ultimate object must always be to provide justice. In a PIL challenging the appointment of M.Nageshwara Rao as interim Director of the CBI, a total of three Judges were disqualified from hearing the matter. Firstly, former Chief Justice Ranjan Gogoi, recused himself for the reason that he was a part of the selection committee and he instead assigned a bench presided by Justice A.K Sikri to hear the proceedings. However, then Justice A.K Sikri too disqualified himself from hearing the matter because he was part of the panel that has removed the previous CBI Director Alok Verma. Furthermore, Justice N.V Ramana also removed himself for apparent personal reasons. This shows that the recusal of Judges is a common practice.
CRITERIA FOR RECUSAL OF A JUDGE:
It is one of the settled principles of a civilized legal system that a Judge is required to be impartial. A Judge can be disqualified for having any kind of pecuniary interest, whether big or small. This was observed in the case of P.D. Dinakaran (I) v. Judges Inquiry Committee [3], Moreover, a Judge is automatically disqualified from hearing a case where he/she is interested in a cause that is being promoted by one of the parties to the case. This is also known as subject matter bias. Also, no man should be a Judge in his case; this is reflected in the Latin maxim ‘Nemo Judex in causa sua’[4]. In matters where the interest of the Judge is other than financial, then the disqualification is not automatic but an inquiry is required to know whether the existence of such an interest will likely affect the decision-making process or not. Section 479 of The Code of Criminal Procedure, 1973, states as follows:-
“No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.”
In was observed in the case of Baidyanath Mahapatra v State of Orissa[5], the Supreme Court quashed the order of the tribunal confirming premature retirement on the ground that the chairman of the tribunal was also a member of the review committee which had recommended the premature retirement.
Another set of important principle is ‘The Bangalore Principles of Judicial Conduct, 2002’[6], it states that:
- A judge shall, so far as is reasonable, conduct himself or herself as to minimize the occasions on which it will be necessary for the judge to be disqualified from hearing or deciding cases[7].
- A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially[8]. Such proceedings include, but are not limited to, instances where:
- the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
- the judge previously served as a lawyer or was a material witness in the matter in controversy;
- the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy.
Now, coming onto a different approach by which Judges are changed in a case is through the roster. The SC Rules, 2017, Chapter V[9]: Powers, Duties, and Functions of the Registrar, Rule 29 states that the registrar under the guidance of the Chief justice is required to prepare a roster. Under such circumstances, it is likely to happen that ‘part heard’ cases are given to other judges. Such part-heard cases can be retained by a judge in a situation where both the litigants request for the same on the ground that the judge had heard the matter for a considerable length of time and therefore de novo hearing, i.e. fresh hearing before other judges would not be ideal. Upon such a request the chief justice may assign the same Judge for hearing the matter.
CONCLUSION:
The doctrine of Recusal enshrines the principle of natural justice and has been of utmost importance in ensuring a free and fair trial for the parties to a case. It does not just comes handy when a Judge depicts biasness whether it is pecuniary or personal but also keeps them in check. The fear of disqualification pushes them to act rightfully. It may also be noted that a mistaken case of recusal can cause as much harm as in cases where the judges refuse to recuse themselves from hearing of a matter despite the existence of biasness. The doctrine of recusal should be used as positively as possible for the benefit of the greater rather than being used as an instrument to evade judicial work by the Judges. The apprehension of biasness should be judged from a healthy and rational point of view before calling out for disqualification. Recusals can also cause a hindrance in the proceedings as the change of Judges is not entirely a smooth process. Hence, it is necessary to use this doctrine only under actual grounds of biasness and not as a tool to maneuver or delay justice. Since justice delayed is justice denied.
References
[1] The constitution of India [Article 124(6) ], available at: https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf (Last visited on May 29th,2020)
[2] The constitution of India, available at: https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf (Last visited on May 29th,2020)
[3] (2011)8 SCC 380.
[4] Piotr J. Malysz, ‘Nemo Judex in causa sua as the basis of law, ustice and justification in Luther’s Thought’, Harvard Divinity School.
[5] AIR1989 SCC664.
[6] The Bangalore Principles of Judicial Conduct,2002, available at: https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf (Last visited on: May 29th, 2020)
[7] THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT 2002 (Principle 2.3) , available at: https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf
[8] THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT 2002 (Principle 2.5) , available at: https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf
[9] SUPREME COURT OF INDIA HANDBOOK ON PRACTICE AND PROCEDURE AND OFFICE PROCEDURE, available at: https://main.sci.gov.in/pdf/LU/ppop2017.pdf (Last visited on: May 28th,2020)
This article Is written by Tanya Singh student of 1st year, BA.LLB at Vivekananda Institute of Professional Studies, GGSIPU.
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