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A Calcutta High Court judge recently recused himself from a hearing a matter after a party raised objection over his being a Facebook friend of an appearing counsel. A brief order passed with respect to the same on September 11 by Justice Protik Prakash Banerjee states,
“After having heard the submissions of the petitioner, it appears that his contention is that if a Hon’ble Judge has a friend on facebook who is a member of the Bar that is a reason for him to recuse from the case.
If that is the view of the petitioner, it will not be proper for me to take up the matter and release this matter on personal ground.”
While there are few reports of judges having recused on the ground of being a Facebook friend with a litigant party or an appearing counsel in India, such online friendships have been viewed with caution in a recent US case.
In February this year, a custody order passed by a judge in Wisconsin was ordered to be re-heard by a another Bench by a State Appeals Court on the ground that one of the parties to the dispute was the judge’s Facebook friend. The order passed to this effect by the State Appeals Court observes,
“… the establishment of an undisclosed Facebook connection between Judge Bitney and Carroll during ongoing litigation created a great risk of actual bias resulting in the appearance of partiality. Therefore, the presumption of Judge Bitney’s impartiality has been rebutted and a due process violation occurred…we caution that judges should recognize that online interactions, like real- world interactions, must be treated with a degree of care…The facts of this case indicate that Judge Bitney did not exercise that degree of care in accepting Carroll’s Facebook “friend” request.“
However, in November 2018, the Florida Supreme Court ruled that judges would not be disqualified from hearing a case on the ground that they were Facebook friends with the counsel involved. In this regard, the majority opinion written by Chief Justice Charles T Candy reasons as follows:
“… the mere fact that a Facebook “friendship” exists provides no significant information about the nature of any relationship between the Facebook “friends.” Therefore, the mere existence of a Facebook “friendship” between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook “friends” with a relationship of an indeterminate nature…”
While he concurred with the majority verdict, Justice Jorge Labarge sounded the following note of caution, after taking note of the dissenting opinions in the case.
“I write to strongly urge judges not to participate in Facebook. For newly elected or appointed judges who have existing Facebook accounts, I encourage deactivation of those accounts…participation in Facebook by members of the judiciary “is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.””
A similar warning was issued at the instance of then Chief Justice of the Jammu and Kashmir High Court, Justice N Paul Vasanthakumar back in 2015. In a circular issued in August that year, the High Court had cautioned judicial officers against developing a practice of “Facebook-club-culture with Advocates and members of Civil Society which has a potential of sending wrong signals to the public in general and litigants in particular.”
It has also been gradually established that the Bench itself is the ultimate authority in deciding whether it is appropriate for a judge to recused from a particular case. Placing reliance on the case of Supreme Court Advocates-on-record Association v. Union of India (NJAC case), a Division Bench of the Calcutta High Court itself has earlier highlighted that it is the duty of a Court to decide a plea of recusal on merits and not release a matter on the mere asking of a litigant.
On similar reasoning, a Single Judge of the Madras High Court ruled last year that no one can compel a judge to recuse from a case. Allied observations have also been made by the Bombay High Court when it endorsed the view that a recusal could take place for a variety of reasons that were personal to the judge – ranging from his or her conscience, to what might constitute a conflict of interest in their minds. The observations were made while declining to lay down set guidelines for the recusal of judges.
Notably, in that case, an advocate had sought for a guideline calling for the recusal of judges if “the Advocate/party of the pending matter before him/her, has visited his/her Facebook page and/or his account on any other social media.” This, and allied prayers, were however rejected by the Court after highlighting the broad principles laid down in the case of Satish Mahadeorao Uke v Registrar, High Court of Bombay, Bench at Nagpur, wherein it was held,
“A Judge may recuse at his own choice from a case entrusted to him by the Chief Justice and it would be a matter of his own choosing. But recusal at the asking of the litigating party, unless justified, must never be acceded to.”
Earlier, in 2017, another Division Bench of the Bombay High Court had also deprecated the trend of calling on judges to recuse themselves.
More recently, the Supreme Court also adopted a firm stance against recusals sought at the instance of the litigant in a case concerning detention centres in Assam. The Court orally observed,
“Recusal is destruction of the institution. We are not recusing. We will not allow anybody to browbeat this institution.”
All the same, reference may also be made to the case of Ranjit Thakur v. Union of India, wherein it has been observed,
“As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, “Am I biased?”; but to look at the mind of the party before him.”
[Read the Calcutta High Court order]