Monday, November 02, 2015

Who Will Save Us from Judicial Recusal? -- Upendra Baxi

Such is the gravitational pull of the issue of the constitutional validity of the NJAC decision, replete with surprise, that the issue of judicial recusal in certain situations is not discussed at all. But we should recall that NJAC decision is made possible only by a primary ruling concerning when and indeed whether individual Justices should recuse themselves. 

By a long standing convention, recusal whether by the concerned Justice or at the instance of the Bar, is an individual affair; the Court as an institution is not involved. The institutional interest becomes of course engaged when there is allegation of pecuniary bias or any other possibility of conflict of interest. Lawyers may exonerate, however, the possibility of even pecuniary bias by stipulating that they have complete faith in a Judge, as happened when Justice J.C. Shah disclosed the puny shareholding he had in the affected banks in the 1970 Bank Nationalization Case. Does this stand for a wider proposition of law/convention: when parties unanimously so stipulate, there is no pecuniary bias or conflict of interest?

But it was never a matter of lis or constitutionality, till the advent of the 2014 decision in Subrato Roy Sahara; there Justice Khehar (in which Justice Radhakrishnan agreed) took the lead to confront the convention with the judicial oath of office under the Third Schedule of the Indian Constitution. His Lordship) strongly deprecated the recusal convention as the essence of “[C]alculated psychological offensives and mind games” which needs “to be strongly repulsed” and recommended a “similar approach to other Courts, when they experience such behaviour". They further held that: “… not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will”. 

Justice Khehar followed his own logic in the NJAC Case: “A Judge may recuse at his own, from a case entrusted to him, by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified”. The irony is lost in the NJAC decision whose strength lies in a robust defence of the judicial collegium reinforced by a rigorous approach towards respecting conventions (following judicial precedents is held to be a convention) in constitutional interpretation and change!

There a three judge bench referred the matter to a five judge Bench, which was constituted by the CJI (on 7.4.2015) comprising Anil R. Dave, Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ; Justice Anil Dave recused himself and the CJI substituted Justice Khehar as presiding judge (on 15.4.2015). Apparently, Justice Dave recused himself because he became an ex officio Member of the National Judicial Appointments Commission, on account of being the second senior most Judge after the Chief Justice of India. Thus arose a piquant situation: as Justice Khehar demonstrates, Justice Dave was a member of the Judicial Collegium when he was on a three judge Bench and became a member also of the NJAC; and so was the constitutional destiny of Justice Khehar and indeed all seniormost justices of the SCI! In fact, all Justices whether or not potential members either of the Collegium or the NJAC, could be said to be officially interested in the outcome that retained the power of elevations ( and transfer of High Court Justices) unto themselves! 

To reiterate: recusal was denied by Justice Khehar in Subrata Roy Sahara where (speaking for Justice Radhakrishnan and himself); he ruled that it is an appropriate remedy when pecuniary bias is demonstrated but aside from this exception the Third Schedule does enjoin a constitutional duty to adjudge all cases and controversies coming before the SCI without ‘fear and favour’. Was a constitutional convention thus made subject to judicial review process and power?

In the NJAC decision, Justice Chelameswar and Goyal were further somewhat baffled by the petitioner’s submission: was it the “implication of Shri Nariman’s submission” that Justice Khehar “would be pre-determined to hold the impugned legislation to be invalid”? But if so, “the beneficiaries would be the petitioners only” as the respondent government of India had no objection to the continuance of the Justice.

On the wider question of institutional or official bias, enshrined by the Supreme Court itself on the Indian administrative law, Justices Chelameswar and Goyal ruled that “Judges of this Court are required to exercise such “significant power”, at least with respect to the appointments to or from the High Court” with which they are associated. If accepted, the argument of Shri Nariman, they said, “would render all the Judges of this Court disqualified from hearing the present controversy”. This was not a “result” legally permitted by the “doctrine of necessity”. 

Agreeing with 1852(Dime) and 1999 (Pinochet) House of Lord Opinions, Their Lordships drew a distinction between ‘automatic’, considered (non- automatic), and conscientious recusal. Justice Kurian, however, specifically urges that “a Judge is required to indicate reasons for his recusal” to promote transparency and accountability which stem from the “constitutional duty, as reflected in one’s oath”. This would also help to “curb the tendency for forum shopping’, more so because (as Justice Lokur observed) judicial recusal applications are “gaining frequency”. However, Justice Lokur disagreed; finding recusal far from a “simple” affair he questioned the requirement of reasoned opinion; and urged that the issue being “quite significant” warrants fresh rules. His Lordship ruled that “it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other judges on the Bench”.

Five categories of recusal emerge from this discourse. The first is when the concerned Judge declines to sit on the Bench for reasons conveyed to the CJI. Since the litigating or general public never knows what information is thus exchanged, we will never know why such recusal occurs.

Automatic recusal, second, occurs when it is demonstrated that the Judge has a pecuniary bias; but when a judge denies these, ‘real danger’ evidence to the integrity of the judicial system as a whole has to be provided. The third category of considered recusal, though the Supreme Court does not so name it this way, occurs when there is ‘real likelihood’ of non-pecuniary bias or conflicts of interest. In both these situations, if necessary, the Brethren sit on judgment concerning the consequences of individual judicial recusal (or non-recusal) conduct.

The fourth ground of recusal is that of official or institutional bias. The NJAC decision can be said to hold either that there is no such thing as institutional bias, or the doctrine of necessity (i.e. the Court has to decide) operates; and both can be justified by the judicial oath. This is a fine point because the Court both follows (as in this case) the collective wisdom of past judicial precedents and also departs from it massively!

The fifth category is problematic in that ‘conscience’ here conflicts with express provisions of judicial oath. If the Constitution creates a duty to adjudge, may a Justice recuse himself or herself without violating that obligation? Conversely, should ‘conscience’ be considered so supreme that any Justice may on that ground escape the constitutional judicial obligation to hear and decide a matter? Should Justices resign their offices to serve the judicial conscience or should they be permitted, upon hearing the full arguments on the substance, to recuse themselves in individual cases? Should the Brethren or the Bar be allowed to override individual judicial conscience? What are the ethical obligations of the Bar in regard to recusal and do they extend to individual lawyers, in case the Justice pleads a constitutional duty to adjudicate the matter? And finally (without here being exhaustive) would a rule made by the Court and/or the legislature ever solve the issue of conscientious recusal? 

The NJAC decision presents us with a bouquet of concerns, going at the heart of the so-called public virtues of ‘transparency’ and ‘accountability. What, if anything, may one learn from other jurisdictions and the UN-Bangalore Principles of Judicial Conduct and allied regional jurisprudences? Or, all said and done, should we say with Eugene Ehrlich: ’The best guarantee of justice lies in the personality of the Judge?’

A post by Upendra Baxi, Emeritus Professor of Law, Universities of Warwick and Delhi; former Vice Chancellor, University of South Gujarat and Delhi.  Professor Baxi can be reached via comments posted on this website or through email at
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