Recusal

Recusal refers to the act of a judge or policymaker stepping down from a case due to a potential conflict of interest. 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. Accordingly, 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.

Merriam Webster dictionary defines recusal as follows “to disqualify (oneself) as judge in a particular case or broadly speaking “to remove (oneself) from participation to avoid a conflict of interest.

Official Definition

As defined in Case laws

In Ashok Kumar Yadav v. State of Haryana, the Supreme Court tried to explain the reasons behind recusal. Rather than leaving it to the absolute discretion of the judges, the likelihood of bias was focused on. Hence, if there is a reasonable chance for the judge to be biased, the judge is supposed to recuse himself.

Similarly, in Ranjit Thakur v. Union of India, Justice MN Venkatachalaiah affirmatively held that ‘the proper approach for the Judge is not to look at his mind but to look at the mind of the party before him.

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, 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

Ministry of Law and Justice: In the response submitted by the Minister of Law and Justice, it is emphasized 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:  § 2200.68 Recusal of the Judge: 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.