On July 13, Justice GB Shah recused himself from a division bench hearing former Gujarat minister Maya Kodnani’s criminal appeal in the Naroda Patiya riots case. He didn’t explain his decision. The next day, the matter was assigned to another division bench comprising justices MR Shah and KS Jhaveri. They too recused themselves. The judges orally admitted to being approached by some of the accused in the case, but their written order did not provide any reasons for recusal.
It was a similar story with Justice GR Udhvani, who did not explain in detail his recusal on October 6 from a case dealing with Prime Minister Narendra Modi’s alleged breach of the election code.
This pattern has also been witnessed in the Punjab and Haryana High Court this year. There have been a slew of recusals in cases covering a wide range of issues, several of which were in the public interest.
The rise in the number of recusals is the harbinger of a worrying trend – of judges being increasingly unsure of their ability to impartially deliver justice, particularly in politically charged cases. For a judicial system that prides itself on its independence and preaches virtue to citizens and governments alike, these recent developments call for introspection.
Merely a ruse?
Recusal is a widely accepted device to ensure that judicial decisions are not only fair in fact, but also publicly perceived that way. However, inherent in recusal is its double-edged nature: if not done where needed, it affects impartiality; if done where it is unnecessary, it demonstrates a breach of the judicial oath of office that requires adjudication “without fear or favour”.
Further, recusal operates as a concept in the small gaps of law and ethics. Should there be legal standards to govern recusal? Even if there are legal standards, should they be assessed by the judge individually as a moral-ethical question, or by a bench of judges as a legal one?
The collegium case
The Supreme Court, which has come down heavily against lawyer-induced recusals in the past (see Justice AS Khehar’s opinion in the Sahara case) had in the National Judicial Appointments Commission case an opportunity to lay down the law, not just for litigants but also for the judicial fraternity.
In the NJAC case, advocate Fali Nariman contended that Justice JS Khehar ought to recuse himself from hearing the case owing to a “conflict of duty”. This was because the judge was also a member of the collegium of judges that would be revived. and consequently appoint judges, were the NJAC to be struck down.
A similar claim had been made by another advocate about Justice Anil R Dave, who headed the bench before Justice Khehar took over. While Justice Dave stepped down, Justice Khehar did not.
The merits of this particular case aside, Justice Jasti Chelameswar, speaking for the majority, laid down the law relating to recusal and said there are two grounds that justify recusal. The first is when he/she is automatically disqualified through having a monetary or other relevant interest in the case. Thus, if a judge owns property whose title is in dispute, he quite naturally cannot sit in judgment in his/her own cause.
The second reason cited by Justice Chelameswar is when there is reasonable apprehension or a real danger of bias. Here, the merits of recusal will have to be assessed on the basis of whether the continuance of a judge in a case might lead to a reasonable apprehension of bias in the mind of a fair-minded and impartial observer.
Implicit in this instance, however, is the need for a recusing judge to give reasons for her recusal. As Justice Kurien Joseph pointed out in his concurring view in the NJAC case, it is only when reasons are provided that there is transparency in judicial procedure and the perception of impartiality is heightened.
Law or ethics?
Justice Madan Lokur does not agree with this rationale. At the heart of his dissent lies a conceptual confusion as to whether recusals ought to be treated as a legal question or an ethical one.
If it is the former, as Justice Chelameswar suggests in the case of the claim against Justice Khehar, then the natural corollary is that reasons will have to be provided, and if necessary, those reasons can be challenged on appeal.
If however it is a question of ethics, then, as Justice Lokur believes, the matter must be left to the individual judge and he/she must be allowed to recuse or not, with or without reasons, and there will be no appeal.
In his dissent, Justice Lokur alludes to the practical aspects. If reasons are provided and the recusal is overturned on appeal, a judge will be compelled to hear a case she feels she ought not to preside over.
With respect, I would argue that this possibility, admittedly infrequent, must give way to the end of impartial justice. If no reasons are provided – or ostensibly poor ones are suggested as is the case in Gujarat – then an unwilling judge being forced to hear a matter is preferable to the credibility of the entire judicial institution being questioned.
Equally, one could argue that such a situation as Justice Lokur fears will likely never come to pass, since the very requirement that reasons be given will deter frivolous recusals.
The way forward
The fact that on three occasions, involving two politically sensitive cases, the Gujarat High Court has not performed its constitutionally mandated duty to speak truth to power leads to the view that it missed key opportunities to underline its independence and credibility.
This is not to cast aspersions on the individual judges who have recused themselves, or to suggest that the government had browbeaten them into withdrawing. However, as the judges have provided no reason for the recusals, it becomes impossible to assess whether the recusals were justified or not, and whether as a consequence impartiality has been upheld, or damaged. In this opacity lies room for unfettered discretion, governmental coercion, secret compacts or simply judicial pusillanimity.
It is this opacity around recusals that must be tackled. Justice Chelameswar’s view, speaking for the court in the NJAC judgment, provides a clear path forward: treat recusals as a legal question, and let the court as a whole provide reasons as to whether a judge ought to recuse in a given case or not.
Particularly in politically charged cases such as Naroda Patiya or the Saradha scandal and countless others, it is not merely the political leaders but the credibility of the judiciary as an independent institution that is on trial. Not recusing wantonly and delivering justice freely, without fear or favour, is what the law demands – and the country expects – of its judges.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy, an independent legal think tank based in New Delhi.
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