Judge’s Recusal

Why in News?

A Supreme Court (SC) judge recused from hearing a petition against the government’s move under the Public Safety Act.

What is the story so far?

The petition was against the government’s move to charge former Jammu and Kashmir CM Omar Abdullah under the Public Safety Act.
The petition was filed for issuance of habeas corpus writ for authorities to produce Mr. Omar Abdullah before the SC and set him at liberty.
After the SC judge recused, the case was finally heard by another bench.

What is Recusal?

It usually takes place when a judge has,
1. A possible conflict of interest or
2. A prior association with the parties in the case which may lead to lack of impartiality.

What are the rules on recusals?

There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts.
It is left to the discretion of a judge.
The reasons for recusal are not disclosed in an order of the court.
The decision to convey the reasons rests on the conscience of the judge.
At times, parties involved raise apprehensions about a possible conflict of interest.
A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

Should the reasons be put on record?

Justice (now retd.) Kurian Joseph talked about this in his opinion in the National Judicial Appointments Commission judgment, 2015.
He highlighted the need for judges to give reasons for recusal as a measure to build transparency.
He wrote that it is the constitutional duty of a Judge, as reflected in one’s oath, to be transparent and accountable.
Another judge, Justice (retd) Madan B. Lokur agreed that specific rules require to be framed on recusal.

What happened in recent cases?

Judge Loya case - In 2018, petitioners in the Judge Loya case sought the recusal of SC judges from the Bench.
The court refused the request and observed that recusal would mean abdication of duty.
Assam’s detention centres case - In 2019, the then-Chief Justice Ranjan Gogoi was asked to recuse himself in the middle of a hearing of a PIL filed about the plight of inmates in Assam’s detention centres.
Justice Gogoi said that a litigant cannot seek recusal of the judge.
The court observed that the judicial functions may involve 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.

Why did Justice Arun Mishra argue against recusal?

He refused to recuse himself from the Constitution Bench hearing a question of law on the Indore Development Authority v. Manohar Lal.
The issues involved in the case were related to a reading of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
The petitioners had objected to Justice Mishra leading the Constitution Bench which was hearing a question of law challenging his own earlier judgment in the case.
Justice Mishra said accepting reluctantly the wishes of parties to recuse himself would sound the death-knell for judicial independence.

Source: The Hindu