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Disclosure vital for transparency

A judge choosing to recuse himself or herself from hearing a case must state the reasons for this decision, argues ALOK RAY

Alok Ray | New Delhi |

On 22 June, Justice Aniruddha Bose, a Judge of the Supreme Court recused himself from the hearing of petitions of the West Bengal Chief Minister and State Law Minister challenging the Calcutta High Court order denying them an opportunity to file affidavits in connection with the 2016 Narada sting case. It has been reported that the Bench, ahead of commencing judicial work announced that Justice Bose ‘has some difficulty’ in hearing the petitions and this would be assigned to another Bench.

On June 18, another Judge of the Apex Court, Justice Indira Banerjee recused herself from hearing a petition pertaining to alleged post-poll violence in West Bengal. Justice Banerjee also recused herself without specifying any reason. Both Judges had started their career as Judges in Calcutta High Court. These are not exceptions, rather the phenomena is an affirmation of a growing trend amongst judges of the higher Judiciary. But these two instances, where there was no request from any of the parties and no disclosed reason of conflict of interest was noted, except that the petitions related to West Bengal and had political implications, require debate and close scrutiny to strengthen the transparency of the judiciary. The issue is whether a judge need not give a reason for such withdrawal and whether he or she can alone determine such recusal at discretion.

In all probability, the Hon’ble Judges have justified reasons for recusal, but disclosure is required to negate unfounded speculations and to strengthen transparency.

In contrast, there are cases, where Judges refused to accept the request of ‘recusal’ by petitioners. In 2018, in the Judge Loya case, such refusal took place, and the request was termed a ‘wanton attack’. In 2019, in a PIL on the plight of inmates in Assam’s detention centres, the then Chief Justice Ranjan Gogoi was asked to recuse himself, but the Court observed, “judicial functions, sometimes, involve the performance of unpleasant and difficult tasks, which require asking questions and soliciting answers 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.”

Judicial disqualification or recusal is the act of abstaining from participation in a hearing due to the threat of conflict of interest. Justice J. Chelameswar in the Supreme Court Advocates-onRecord Association v. Union of India (2015) observed 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.”

In every legal system across the world, there are provisions for recusal of judges to ensure the quality of justice, but it should not be used to avoid responsibility, even if it is only in public perception. The Due Process clauses of the 14th Amendment of the United States Constitution require Judges to rescue themselves from cases in two situations:
1. Where the Judge has a financial interest in the case’s outcome, or
2. Where there is otherwise a strong possibility that the Judge’s decision will be biased.

In either case, it does not matter whether or not the Judge is actually biased, the high probability of bias still damages the integrity of the judicial system. Any party in a lawsuit may request that a judge recuse himself or herself. There may be situations where a Judge can recuse herself or himself at discretion but citing the reason for such disqualification or recusal and conflict of interest is the litmus test.

But where the Judge has declined to cite any reason and the apparent reason is only to avoid professional hazards, then such recusal may create a bad precedent and should not be accepted without scrutiny.

In a different spectrum, although one may ridicule the comparison, can a senior civil servant determine at his or her discretion to dissociate himself or herself from an official responsibility without assigning any reason? The simple answer is no, and rules are there to enquire there is no dereliction of duty. Judges are ensuring accountability in every organ of society but how to improve accountability of judges is a vexed issue of separation of powers.

Conflict of interest is a term used and familiar in Corporate Governance to address the threat to good governance. Directors have to disclose their conflict of interest, especially pecuniary interest to ensure fairness in the decision-making process. Whether in Corporate Law or in Codes of best practices for Corporate Governance, there are measures prescribed to negate the threat of conflict of interest. Section 184 of the Companies Act, 2013 prescribes disclosure of interest by directors. This law seeks to provide the manner and periodicity in which every director of a company is duty-bound to make disclosures of his or her interest in any company or body corporate, firm, or other association of individuals. It also provides that every director of a company who is concerned or interested in a contract or arrangement shall disclose the nature of his concern or interest at the meeting of the Board and shall not participate in such meeting. The law also provides that a contract or arrangement entered into by the company without disclosure or with participation by a director who is so concerned or interested shall be voidable at the option of the company. This Section further provides for penal provision for a director of the company in case of any contravention. Rule 9 of the Companies (Meetings of Board and its Powers) Rules, 2014 prescribes that every director shall disclose his concern or interest by giving a notice in writing in a prescribed form and all such notices shall be preserved in safe custody for a period of eight years.

The requirement of transparency is not lesser in the administration of the judiciary to ensure quality justice to the nation.
We can understand the situation when either or both parties in litigation raise the issue of conflict of interest but when a Judge himself or herself decides to recuse from a hearing without any justified reason, it is surprising. The absence of rules on such a basic issue not only causes delay of justice but may injure the very trust of litigants in the system.

In the Judiciary, there are no written rules on the recusal of judges from hearing cases listed before them in the Supreme Court or High Courts. The decision rests on the conscience of the Judge. If the Judge has in the past appeared for one of the parties or the judge holds shares in a company which happens to be a party, or was in any way substantially related previously in any capacity with the cause of action, the apprehension appears just and acceptable. But when a judge has no such case a recusal raises questions. It is expected that judges of constitutional Courts should rise above such negativities and deliver justice to litigants.

In the National Judicial Appointments Commission Judgement in 2015, Justice K. Joseph emphasised the need to give reasons for recusal to ensure transparency. In his words, “It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.” Justice Madan B. Lokur, his companion Judge also agreed that appropriate rules are required to be framed on the issue.

In the United States and the United Kingdom, a judge is subject to disqualification for an ‘appearance of bias’. However, in Wewaykum Indian Band vs Canada, 2003, the Supreme Court in Canada articulated a test for disqualification more precisely when it asked: ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would this person think it more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?’ The Court further observed that ‘whether there is a reasonable apprehension of bias is to be assessed from the point of view of a reasonable, fair-minded and informed person.’ The Canadian Judicial Council has issued ‘Ethical Principles for Judges’ which includes inter alia, “Disqualification is not appropriate if the matter giving rise to the perception of a possibility of conflict is trifling or would not support a plausible argument in favour of disqualification.”

The Bangalore Principles of Judicial Conduct, 2010 has identified six core values of the Judiciary – Independence, Impartiality, Integrity, Propriety, Equality, Competence, and Diligence. The nomination of Judges to sit on a bench is an inextricable part of judicial power. A case should not be withdrawn from a particular judge without valid reasons and any such reasons and the procedures for such withdrawal should be provided for by law or rules of court.

The writer is a lawyer and author.