‘Tis the season for recusals? Four reasons why the judiciary needs to take notice (and quick)
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‘Tis the season for recusals? Four reasons why the judiciary needs to take notice (and quick)

Anuj Agrawal

Justice Gogoi’s recent recusal, and the controversy surrounding it, has received a fair amount of media coverage. And for good reason – a very public spat between a sitting Supreme Court judge and a practicing lawyer makes for great copy.

But underneath the tantalising prospect of a potentially “viral” story lies the practice of recusals, a practice that suffers from a disturbing amount of ambiguity.

Justice Gogoi’s recusal is not the first and certainly not the last.

Last week, the Bombay High Court’s Justice Kulkarni recused from hearing a matter related to the Adarsh scam – the reason being that he had appeared on behalf of the MoEF on earlier occasions. He is not the first judge to recuse from hearing this matter. On earlier occasions, Justice Shalini Joshi recused from a petition connected to the Adarsh scam; hers was the second recusal.

On the same day as Justice Kulakarni’s recusal in Bombay, Justice Gopala Gowda too recused from hearing appeals emanating from the Babri Masjid demolition. No reasons were cited. One day earlier, the Gujarat High Court’s Justice SR Brahmbhatt recused himself from hearing a contempt matter involving the Ahmedabad Municipal Corporation. The news report does not indicate whether any reasons were given by the judge.

Early last month, Justice UU Lalit recused himself in a petition seeking “basic amenities” for those visiting the disputed site at Ayodhya. This Tuesday, Justice Chelameswar recused himself from the hearing the appeal of Abdul Maudany, the prime accused in the Bangalore blast case. This is after hearing the matter for two years; in August of 2014, Justice Chelameswar was part of the Bench that extended Maudany’s bail term.

Once again, the order of recusal does not indicate any reasons behind this change of mind.

On Monday, Justice Arun Kumar Mishra recused himself from hearing an appeal involving the secretary of the Calcutta High Court Bar Association. The judge reportedly stated that,

“Being on the administrative side in the high court, I had received some complaints regarding the case. When a judge is in knowhow of something, it is not appropriate for him to hear the matter.”

Today, Justice Naik became the ninth judge to recuse from hearing a case related to the Adarsh scam.

All this has happened within the space of a few weeks; that too in cases that are being covered by the media. One can only hazard a guess as to how frequent recusals, or applications for recusals, are in courts across the country.

In fact, it was these applications for recusals that were briefly referred to by Justice Lokur in the NJAC judgment, where he says,

“The issue of recusal from hearing a case is not as simple as it appears. The questions thrown up are quite  significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard.” 

And the present is the perfect time to introduce some change, if not push for the development of these “substantive rules”. At stake is more than just the question of court delays, and re-assignment of cases.

As Vidhi Centre’s Arghya Sengupta observes, there is a lot more at stake.

“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.”

So why now? Four reasons.

One, the Memorandum of Procedure drafted by the central government suggests a minimum of three elevations from the Bar. This increases the possibility of having judges who may have appeared for various parties during their time as a lawyer, as was the case with Justice Kulkarni in the Bombay High Court.

Two, in simplistic terms, it would make life easier for lawyers. Tensions between the Bar and the Bench can, and often do, slow down the pace of the justice delivery system. This was one of the tacit admissions made by CJI Thakur recently.

In the Justice Gogoi matter for instance, irrespective of the eventual findings of the bar councils, the fact of the matter is that the case has not been heard on at least two occasions. Which means another hearing will have to take place, perhaps before another Bench, where the judges may not be too familiar with the facts of the case.

Three, the dissenting opinion penned by Justice Kurian Joseph in the NJAC judgment, writing,

“The litigants would always like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not recused to hear his case. Reasons are required to be indicated broadly.” 

Amidst all the theories propounded and constitutional questions raised in the NJAC judgment, there was a tacit admission that things need to change. That there needs to be greater transparency in the manner in which the judiciary functions; and this need requires acceptance from within the institution.

Four, Chief Justice TS Thakur enjoys a tenure that is far longer than most Chief Justices of India.; he retires in January next year. And it looks like he is keen on building a legacy, be it via his move to introduce Constitutional Courts or hear regular matters on miscellaneous days.

A codification of standard practices, or framing guidelines at the very least, on recusals could well be another feather in his cap.

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