Recusal

Recusal (Judicial) refers to the act of a judge or policymaker stepping down from a case due to a potential conflict of interest. The doctrine of judicial recusal allows, and sometimes mandates, a judge to recuse themselves from a case, leaving the decision to their colleagues. This doctrine is not left to the absolute discretion of the judges but is guided by the potential for bias. Therefore, if there’s a reasonable likelihood of bias, the judge is expected to recuse themselves.

This practice is rooted in the principle of due process of law, encapsulated in the phrase “nemo judex in sua causa”, meaning no one should be a judge in their own case. The fundamental principle is that one may not be a judge in his or her own cause. This principle, as developed by the courts, has two very similar but not identical implications. First, it may be applied literally: if a judge is in fact a party to the litigation or has an economic interest in its outcome, then he or she is indeed sitting as a judge in his or her own cause. This is sufficient grounds for disqualification. Second, the principle can also be applied in cases where a judge is not a party to the suit and does not have an economic interest in its outcome, but behaves in such a way as to give rise to a suspicion that he or she is not impartial, for example, through friendship with a party. This second case is not strictly speaking an application of the principle that one must not be a judge in one’s own cause since the judge’s real or perceived partiality does not normally benefit him or her but another person

Official Definition

As defined in Legislations

Bharatiya Nagrik Suraksha Sanhita, 2023

In India, there is no specific legislation that directly addresses a judge’s recusal. However, Section 479 of The Code of Criminal Procedure, 1973 (Section 525 of Bharatiya Nagrik Suraksha Sanhita, 2023) prohibits a judge or magistrate from trying a case in which they are a party or have a personal interest. It states

Case in which a Judge or Magistrate is personally interested: According to this provision, no judge or magistrate should try or commit a case in which they are a party or personally interested. Furthermore, a judge or magistrate must refrain from hearing an appeal from any judgment or order they themselves have passed or made, unless granted permission by the court to which an appeal lies from their court.'

High Court Rules

Rule 8 of Delhi High Court Rules contained in Chapter 3; Part C which reads as under:

‘8. Judge or Judges who refer a case shall ordinarily sit on the bench which considers the reference – The Judges or a Bench by whom any question or case is referred shall ordinarily be members of the Division Bench or Full Bench, as the case may be appointed to consider such question or case.’

As defined in Official Documents

Bangalore Principles on Judicial Conduct

Under the Bangalore Principles, a judge must recuse themselves from proceedings where their impartiality is compromised or might reasonably appear to be compromised. This includes situations where the judge has actual bias, prejudice, or personal knowledge of disputed facts, has previously served as a lawyer or witness in the case, or has an economic interest in its outcome, including that of their family. The aim is to uphold public confidence in judicial neutrality. However, exceptions exist: if no alternative tribunal can be formed or urgent circumstances require immediate action to prevent a serious miscarriage of justice, the judge may still preside over the matter to ensure fairness and continuity.

• Article 2.5 of the Bangalore Principles of Judicial Conduct provides for instances where the judge may recuse himself or herself. It states

'2.5. 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. Such proceedings include, but are not limited to, instances where:

(a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;

(b) The judge previously served as a lawyer or was a material witness in the matter in controversy; or

(c) The judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy; provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.'

Further, the UNODC's Commentary on the Bangalore Principles of Judicial Conduct notes that the formulation in the Bangalore Principles—“may appear to a reasonable observer”—was agreed upon at The Hague meeting in November 2002 on the basis that “a reasonable observer” would be both fair-minded and informed.

• Article 4.4 of the Bangalore Principles of Judicial Conduct provides for mandatory recusal where any member of the judge’s family (including a fiancé or fiancée) has participated or has appeared as a counsel. It states

4.4 A judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated in any manner with the case.

As defined in Case laws

• In Supreme Court Advocates-on-Record Association and Ors. vs. Union of India it was observed that, "when an application is made for the recusal of a judge from hearing a case, the application is made to the concerned judge and not to the Bench as a whole"

• In All India Institute of Medical Sciences v. Prof. Kaushal K. Verma, the Supreme Court observed that requests for recusal are to be based on reasonable apprehensions; they cannot be speculative or fanciful suppositions. An observation that needs to be emphasized is that recusals generally, and especially those fueled by unjustified demands can be burdensome on the judges who are eventually called upon to decide the cause. Whenever made, the concerned court or judge so charged is bound to take it seriously, as it undermines what is the bedrock of justice delivery impartiality.
• In  Kamini Jaiswal v. Union of India & Anr. Supreme Court emphasized that a judge cannot recuse themselves based on unfounded allegations. It also deprecated the practice of forum hunting, where successive petitions are filed to avoid a particular judge. It observed

Legal Provisions relating to Recusal

In India, there is no specific legislation that directly addresses a judge’s recusal. However the concept of recusal is not an alien concept to Indian jurisprudence.

We find the principal or the roots of recusal in Section 479 of The Code of Criminal Procedure, 1973 (Section 525 of Bharatiya Nagrik Suraksha Sanhita, 2023) , which states: Case in which a Judge or Magistrate is personally interested: According to this provision, no judge or magistrate should try or commit a case in which they are a party or personally interested. Furthermore, a judge or magistrate must refrain from hearing an appeal from any judgment or order they themselves have passed or made, unless granted permission by the court to which an appeal lies from their court.

Kinds of Recusal

Two kinds of recusal are possible. One is the automatic recusal, where a Judge himself withdraws from the case. The second is when one of the parties points to possible bias or personal interest of the Judge in the case and requests a recusal.

Appearance in official databases

Parliamentary Questions

In the response submitted by the Minister of Law and Justice, it is stated that the act of recusal by judges is firmly within the jurisdiction of the judiciary. The government does not maintain records regarding cases of judges recusing themselves. Any reasons for recusal, if they occur, are duly documented within the court proceedings themselves. Therefore, the responsibility and process of recusal are solely within the purview of the judiciary, and the government does not interfere or keep official records regarding this matter.

Research that engages with it

The Recusal conundrum - analyzing the Crisis in the Indian Supreme Court.

The paper delves into the recent controversy surrounding Justice Arun Mishra's non-recusal in the Supreme Court, sparking widespread interest in legal circles. It presents a fresh perspective on the concept of recusal in India, exploring its origins and application, particularly in the context of Justice Mishra's case. By comparing practices in the United States and the United Kingdom, the authors draw attention to potential lessons for India to establish a more transparent procedure for judicial recusals.

Recusal Refusals: Determining Bias and Impartiality

The article discusses recent instances of judicial recusals in the Indian Supreme Court, including controversial refusals by judges to recuse themselves. It examines the implications for the judiciary's impartiality, compares global practices on recusal, criticizes the decisions made by Justice Arun Mishra and Chief Justice Ranjan Gogoi, and suggests reforms to recusal laws.

To recuse or not to recuse?

The author discusses the recent decision on recusal by a five-judge bench, emphasizing the importance of judicial impartiality and independence. They argue that judges should recuse themselves when they have expressed strong views on a legal issue under consideration, as failing to do so may undermine public confidence in the judiciary. They draw parallels with international examples and stress the need for objectivity and fairness in the judicial process.

International experiences

United States of America

A Judge has the discretion to recuse themselves from a proceeding whenever they deem it appropriate. Additionally, mandatory recusal is required under circumstances that would disqualify a Federal judge according to the Code of Conduct for United States Judges. However, this required recusal may be set aside under the conditions specified by Canon 3(D). Any party can request the Judge’s recusal by filing an affidavit detailing the alleged grounds for recusal. If the Judge finds the request valid, they will recuse themselves; otherwise, they will issue a ruling and proceed with the hearing or decision.