#RecusalWatch: Justice UU Lalit, Recusals and Direct Elevations

Recusals might have gotten a bad rap in recent times, but the fact of the matter is that recusals are one of the methods to ensure an impartial dispensation of justice. And despite the fact that recusals do cause delay in a system striving to reduce pendency, there certainly is merit in judges recusing from hearing matters that they might have a stake in..Having said that, problem does arise when judges do not mention the reason for recusal. Reasons may be given orally, but almost never in writing. As a result, litigants and lawyers alike are often kept guessing as to why a judge chose not hear a particular case..Justice Kurian Joseph, in his concurring judgment in the NJAC case had spoken at length about recusal going so far as to state that it is the Constitutional duty of the judges to indicate reasons for recusal..“I am of the view that 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. This would help to curb the tendency for forum shopping.”.But are recusals to be expected? Or are they merely a coincidental occurrence depending upon the listing of cases by the Registry?.An analysis of the limited data available reveals some interesting facts..Elevations from the Bar.Promoting Senior Advocates to the Supreme Court directly has always been done with a fair amount of restraint and caution..These elevations are rare, with the first being Justice SM Sikri way back in 1964. This was the first time a move to recruit from the Bar was made, in a somewhat unique departure from protocol. Following this, there was a dry spell, where there were no such elevations for some time. Justices Kuldeep Singh and Santosh Hegde, none of whom eventually became Chief Justice, were the only two other examples apart from the current batch of judges..Which makes the current crop of sitting judges all the more special..At present, there are three judges in Supreme Court who have been elevated directly from the Bar: Justice UU Lalit, Justice Rohinton Nariman and Justice L Nageswara Rao. All of them were appointed to the Supreme Court in the last 3 years..Justice UU Lalit: Criminal Lawyer Extraordinaire.Prior to his elevation to the Bar as a direct appointee, Justice UU Lalit was at the top of the game as one of the busiest criminal lawyers of his time..He might be best remembered for his stint as the Special Public Prosecutor in the 2G scam case, but that’s not his only claim to fame. He had appeared in a slew of high profile cases, such as representing Punjab CM Amarinder Singh in a corruption case as well as Navjot Singh Sidhu in a culpable homicide case. He is also known to have rendered legal assistance to the who’s who of the criminal world, including RJD strongman Mohammed Shahabbudin. And we haven’t even scratched the surface..That puts the number of recusals Justice Lalit has to his credit, in perfect context. Justice Lalit chose not to be part of a Bench later comprising Justice Pinaki Chandra Ghose and Amitava Roy, which went on to cancel Mohammed Shahabbuddin’s bail plea. He also recused from hearing a matter concerning Narayana Sai, son of Asaram Bapu, ostensibly due to his prior engagement with the self-styled godman..Reflecting on recusals.Murali Krishnan had an interesting take on the imminent need for guidelines on recusals. But recusals seems to depend heavily on the judge’s profile prior to elevation. Or do they?.Criminal matters seem to attract incredible media attention, more so than any other brand of litigation, so it would make sense that judges recusing from high profile cases are always in the spotlight. In the case of Justice UU Lalit, it would seem that his burgeoning private practice afforded him the chance to represent names that are still embroiled in litigation years later. Recusals from such cases would obviously attract more media attention, more so than other matters..As examples, you have two other judges elevated from the Bar with less than half the number of reported recusals amassed by Justice Lalit..As an expert of comparative constitutional law and company law, former Solicitor General, Justice Nariman fought a large number of battles on behalf of the state. Interestingly though, even though his father, the illustrious Fali Nariman practices in the very same Court, the Registry has taken great care to ensure that none of his cases are listed before Justice Nariman..As for Justice L Nageswara Rao, the former Additional Solicitor General quit as one of the most in-demand law officers and went back to private practice, appearing for major names such as Jayalalithaa. This was before he eventually accepted judgeship at the apex court..It might not make sense to grudge a flourishing private practice or view it as an impediment to being a fit for the judicial system, but it certainly heralds a leading trend. And that, in itself, might be a repercussion the system would want to prepare itself for.