Wednesday, November 11, 2009

The recusal debate

Vivek Reddy's most-admired piece seems to have contributed to a healthy debate on the subject of recusals. Here, I wish to share with readers two interesting responses I received - one from Shamnad Basheer and another from K.V.Dhananjay.

I also found P.P.Rao's article on recusal by Judges (Go to Article and click 'Accusation of bias against Judges')published in Tribune very informative. I welcome readers' feedback to these responses, and to P.P.Rao's article.

Shamnad Basheer:
This logic can be stretched ad absurdum . Why don’t we just have a simple test of “is the interest (whether pecuniary or otherwise) significant enough to influence the judge”? A determination in this regard can be made by a special body constituted for this purpose (comprising of senior judges + senior counsels with no interest in the matter and/or academics (or other reasonably objective stakeholders)). The pecuniary vs non pecuniary distinction is arbitrary to some extent—since a judge who owns a share worth Rs 10 may still have to recuse himself under this standard.


This 'recusal' business is simply going out of hand in India. A judge of the Karnataka High Court, L.Narayanswamy recused himself a few days ago in a case that involved a Bank in which the judge happens to hold some 'account'. If only this were to be taken as a precedent, no judge of the Karnataka High Court could possibly hear any case that involves the BESCOM (the sole State company that distributes electricity in Bangalore and which, of necessity, powers judge's residences and the High Court). Or say, a case involving Toyota Motors Company because Judges of the High Court are daily transported in cars manufactured by Toyota Motors. Better yet, no judge in India (excepting judges of rural courts who must be waiting for their sanctioned computers) could possibly adjudicate on any dispute involving Microsoft Corporation simply because Microsoft happens to manufacture the operating system or one or more applications installed in computers used by or for judges.

A judge should, invariably, recuse himself while adjudicating a dispute involving a company the shares of which are held by that Judge. After all, shares of publicly traded companies have no intrinsic value and a decision may itself become 'market moving information'. Further, the securities laws in India, like it is in other countries, forbids the acquisition, possession or dissemination of 'market moving information' by any person except through sanctioned channels. A judge who generates 'market moving information' through his decision is placed in 'no better privileged position' under the securities laws than say, any insider within that company.
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