A disturbing trend that is emerging is lawyers and advocates asking judges in open court to recuse from cases on the plea that they are biased or have made observations that might go against the clients such lawyers represent. While it is not a crime to do so and lawyers or litigants are well within their rights to demand recusal of judges if they feel their interests will be harmed, it is disturbing if this becomes a trend and recusal demands are raised too frequently.

It is a key principle of any judicial system to ensure that judges are fair and impartial. A judge could become biased due to many reasons. It may so happen that a particular judge might be biased or prejudiced against a lawyer or a litigant. For this, it is not enough if the judge had previously ruled against the litigant or the lawyers’ client in other cases. It means that the judge has acted or spoken in a manner that could be considered unfair or prejudicial to the case. An example of this is when former chief justice TS Thakur was asked to recuse from the BCCI case for observing in another case that other sports bodies should be given the “BCCI treatment”. Lawyers appearing for BCCI pounced upon the statement to suggest that perhaps the CJI had an axe to grind with the BCCI and demanded his recusal from the case. But that was not considered bias by the court.

If a judge has personal knowledge of the facts of the case, ideally he should not preside over it as his judgments might get clouded. Legal cases are decided on the basis of evidence produced in court. If the prosecution fails to produce evidence about which the judge has personal knowledge, his judgment might not be fair. Further, if the judge is related to the litigants or the lawyers appearing in the case, there is a chance of bias creeping in. For instance, if the lawyer appearing for a litigant is the son of the judge, it is obvious that the case should not come up before him. Finally, if the judge or anyone of his family has any pecuniary interest in the subject matter of the case, the judgment might be clouded. For example, if a company is fighting a case for acquiring a land and if the son of the judge to whom the case is assigned is a director in that company, the judge may not be impartial.

Normally, there are no issues on the fairness and impartiality of judges. There are instances when judges themselves recuse on recognising that they would not deal with the subject matter of the case impartially. After all, it is not only important for a judge to be fair and impartial and also appear to be so. But there are times when either the litigant or the lawyer has doubts about the judge. Then they can move to have the case assigned to a different bench. But any such move has to be backed by strong reasons and cannot be demanded as a matter of right. What is currently happening is trivialising the sensitive issue and this can have serious repercussions for the judiciary.

Recognising this, a bench of Justice JS Khehar, CJI and Justice NV Ramanna recently commented that if this continues the court will be left with no alternative but to lay down a law for recusals. The bench was hearing a PIL filed by Lt. Col. (Retd.) Anil Kabotra which asked the court to direct the Ministry of Law and Justice to take immediate steps to fill up existing vacancies in the judiciary as well carry out reforms and expansion as per the 245th report of the Law Commission. During the course of the hearing, advocate Mathew J Nedumpara, who was not appearing in the case, intervened and sought the recusal of the CJI from the matter.

The bench was livid, first for the fact that the advocate intervened without permission, and then because he was making an unfair demand. Justice Khehar said “We will like to hear you and decide the matter. We are here for years and you tell us to recuse”. The bench further said that “you people just come here and say things that the judge should recuse or that judge should recuse himself. We would like to lay down the law on the issue of recusal of judges”.

In recent times, the subject of judges’ recusal has become a burning issue in India with lawyers and advocates demanding recusals at the drop of a hat. As recently as December 2016, lawyer-activist Prashant Bhushan asked Justice JS Khehar to recuse himself from hearing the Sahara-Birla diary case as, he said, his file for elevation as chief justice was pending with Prime Minister Narendra Modi and Modi’s name allegedly featured prominently as recipient of kickbacks from the two firms when he was chief minister of Gujarat. His demand elicited criticism against him from both the Supreme Court bench of Justice Khehar and Justice Arun Mishra and the government.

Attorney General Mukul Rohatgi termed it “cheap tactics” and said he was pained. Justice Mishra said, “This is sheer contempt of court. We are constitutional functionaries. Is it not possible for us to conduct our duties?” Justice Khehar was angered enough to close the file and said he was not going to hear the case further and Bhushan was free to go to any other judge or bench.

In January this year, a “sexually harassed” law intern had asked a Supreme Court judge to recuse himself from hearing her appeal as he had worked with the accused retired Supreme Court judge in the Bombay High Court. In May 2016, lawyer Mrinal Kanti Mandal asked Justice Ranjan Gogoi to recuse from the case Yogeshwari Kumari and Ors v Lake Shore Hotels Pvt Ltd on the plea that he had met members of the respondent company’s management on a visit to Rajasthan. In the same month in 2016 Justice V Gopala Gowda recused himself from hearing the case of criminal conspiracy against senior BJP leaders LK Advani, Murli Monohar Joshi and Uma Bharati in the Babri demolition episode. The judge did not give any reason for his decision.

The Supreme Court sees judge recusals frequently. In January this year, as many as six judges recused themselves from cases. Judges may or may not give any reason for recusals, but these are never made public. The issue of judge recusals is sensitive and needs careful handling.

Though the Supreme Court has expressed the desire to lay down a law on the subject, it is clear that laws alone will not help if judges remain adamant. There is law on recusals in the US vide 28 USC Part 1, Chapter 21, No. 455. It states:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself if any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served a s lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person;

Is a party to the proceeding, or an officer, director, or trustee of a party;

Is acting as a lawyer in the proceeding;’

Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

Is to the judge’s knowledge likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:

(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;

(2) the degree of relationship is calculated according to the civil law system;

(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;

(4) “financial interest” means ownership of a legal or equaitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;

(ii) An office in an educational, religious, charitable, fraternal, or civic organisation is not a “financial interest” in securities held by the organisation;

(iii) The proprietary interest of a policyholder in a mutual insurance company, or a depositor in a mutual saving association, or a similar proprietary intests, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv) Ownership of government securities is a “finacial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualificaiton arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualificaiton.

(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her hushold, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the ground for the disqualification.

But despite the existence of such a detailed law in the US, in 2011 in the case Caperton v A. T. Massey Coal, Inc, the presiding judge, Juctice Brent D. Banjamin of West Virginia refused to recuse himself even though it was common knowledge that he had received huge campaign contributions from the account of the president of the company whose appeal in a $50 million case was before his bench. He refused three motions to recuse and then cast the presiding vote to exonerate the company. The US Supreme Court had to reverse his decision.

Following this nearly 140 law professors in the US wrote to Congress to call for hearings and implement a legislation to make recusals transparent and reviewable.

In June 2016, the US Supreme Court had to overturn a death penalty in the Terence Williams case when it was found that the Chief Justice of Pennsylvania Supreme Court, Ronald Castille, who was the District Attorney prosecuting Williams years earlier, had refused to rescue himself from the case and had awarded the death penalty after hearing it. The US Supreme Court overturned the decision saying the judges must rescue themselves from a case they had a major prior role in, howsoever earlier.

The court further said that “Bias is easy to attribute to others and difficult to discern in oneself”. The court pointed out that “an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator” in a significant aspect of a case ~ here, “the prosecutor’s decision to seek the death penalty”.

At the heart of the problem is the procedure: Supreme Court judges are to decide themselves whether they should recuse or not. This raises the question of conflict of interest. Nemo judex in case sua, or no one should be a judge in his own cause is the guiding principle of natural justice. The Supreme Court itself has cited this in several cases, most importantly recently when it questioned the right of BCCI mandarins to change rules to have IPL teams allotted to them. Hence, when judges themselves decide whether they should recuse or not, this principle is flouted. Therefore, if any law is made on the subject of judge recusals, whether by the Supreme Court or by the legislature, it has to take into account the procedure for the same.

The writer is Editor-in-Chief, www.indiacommentary.com