Research ArticleConstitutional Law

Judges’ Recusal as a way of serving Natural Justice and Overcoming Bias: An Analysis


Author: Akankshya Anuska Babu, 3rd year student at KIIT Law School, Bhubaneswar, Odisha.

Introduction

In the study of administrative law and other related subjects the theory of natural justice remains one of the most misunderstood concepts of all times. People often take a much-construed point of view regarding such topics. Because of this ignorance, people often leave out many important topics like theory of bias, pecuniary bias out of the discussion.

However, the discussion on Natural Justice remains incomplete without a fair and proper discussion on the concept of justice. The word justice itself has been derived from the Latin word, “jus” which means right or law. This also sees use in the word “just”, which according to the Oxford dictionary means, “a person who does what is moral and right” and is disposed towards “handing everyone his or her due”. The word fair can be regarded as a synonym for just. The concept of justice is based on a humungous number of fields and many different viewpoints and perspectives including concepts like morality, ethics, law, rationality, religion which talk about virtues, equity and fairness.

Many scholars have propounded many different concepts and definitions of Justice. According to Plato, “justice is a virtue establishing rational order”[1]. Aristotle said that, “justice consists in what is lawful and fair, with fairness involving equitable distributions and the correction of what is inequitable”[2]. Thomas Hobbes feels that, “justice is an artificial virtue, necessary for civil society, a function of the voluntary agreement of the social contract”.

JS Mills and John Rawls however gave the most important definitions. Mill propounded that, “justice is a collective name for the most important social utilities, which are conclusive to fostering and protecting human liberty”. This is the Free Will theory or the Laissez Faire theory. John Rawls analysed “justice in terms of maximum equal liberty regarding basic rights and duties for all members of society.[3]

There are several theories of justice like commutative, distributive, legal, and social but in this piece, our focus remains on natural justice. Principle of natural justice has been derived from the words ‘Jus Naturale’ which are of Roman origin. These words are used in the Roman legal system and are closely related to common law and moral principle but it is not codified. The principle natural justice is uncodified. In English law, natural justice is a 6technical terminology for the rule against bias. While the legal maxim natural justice is of “Nemo judex in causa sua” and that for the right to a fair hearing “Audi alteram partem”, it has largely been replaced and extended by the general “duty to act fairly”.

Bias and Its Types

For about three to four hundred years, the Anglo- American courts have actively used two principles of natural justice. However, this reduction of concept of natural justice to only two principles should not be allowed to obscure the fact that natural justice goes to, “the very kernel of the problem of administrative justice.[4] These two principles are:

  1. Nemo in propria causa judex, esse debet– No one should be made a judge in his own cause, or the rule against bias.
  2. Audi alteram partem– Hear the other party, or the rule of fair hearing, or the rule that no one should be condemned unheard.

To these two principles now transparency and good-governance may be added as a new dimension, which includes the duty to pass a speaking order.[5]

However, in our discussion we will be focusing on types of bias and how are they related to the concept of recusal. One word which has surfaced the entire internet and on all social media sites dealing with legal matters, is recusal. Recusal means the process of a judge or prosecutor or juror withdrawing from a case on several grounds such as lack of qualification, impartiality or maybe even due to conflict of interest and bias.

The flowchart mentions the different types and subtypes of bias. However, the types of biases should be analysed in further details.

  1. Personal Bias- A judgement, which is given or delivered due to the personal bias, or the feeling that the judge has for or against a party. This type of bias can generally be seen if either of the party is a friend, family member, competitor or enemy. There are some tests to check personal bias, likelihood of bias and suspicion of bias.[6]

Mineral Development Corpn Ltd. vs State of Bihar [7]is a case of personal bias. In this case the petitioners were granted mining licence for 99 years in 1947. But in 1953, the government had sent the petitioner a show cause notice stating to which the petitioner had sent a reply and denied the allegations. Two years later the government issued a notification cancelling the licence. But it was challenged as the corporation’s owner had opposed the minister’s election in the general election of 1952. In addition, the minister had filed a criminal case against the petitioner and the Bihar High Court transferred the case to Delhi on the ground of political rivalry. However, the court had quashed the government’s order on the grounds of personal bias amongst other grounds.

Likelihood of bias- It was stated that in order to challenge an administrative action with full success on the ground of personal bias it is essential to prove that there is a “reasonable suspicion of bias”[8] or a real likelihood of bias”. The “reasonable suspicion” test is primarily concerned with outer appearances, but the “actual likelihood” test is concerned with the court’s own assessment of possibilities. In practise, however, the tests are quite similar to one another, and in the great majority of situations, they yield the same result. [9]

  1. Pecuniary Bias- A judgement given due to the financial interest of the judge connected to that case. The judicial view is unified and conclusive that any pecuniary interest, no matter how minor, would invalidate administrative action. If the prejudiced member was present when the decision was made, his non-participation in the proceedings will not prevent him from being disqualified.[10]
  1. Subject Matter Bias- This category includes instances in which the determining officer is directly or indirectly interested in the case’s subject matter. Here, too, mere participation would taint the administrative action unless there was a genuine risk of prejudice. In the case of v. Deal Justice, ex p Curling[11], the judge was not disqualified from trying the case regarding animal cruelty on the mere ground that he had a membership of the Royal Society for the Prevention of Cruelty to Animals, as this was not regarded as a real likelihood of bias.

Other forms of bias like departmental bias or institutional bias is somewhat inherent in the administrative processes and these cannot be denied. However, this needs to be kept in check as these might jeopardize the very concept of fairness and justness.

Judges’ Recusal

It is very well known fact that if there lies any conflict of interest, a judge can recuse from hearing case in order to prevent any conception of any possible bias on part of any judge. However, one might ask what does conflict of interest means. Conflict of interests might mean holding shares in the litigant company, the petitioner being a family member or friend amongst many others. Another reason for a judge to recuse from a case is when an appeal has been made in the Supreme Court against a judgement, which was delivered by a judge during his time in the concerned High Court.  This practice finds its roots in the concept of Nemo in propria causa judex, esse debet, which means that no man should be a judge in his own cause. A judge is expected to recuse from a case, as he is to uphold the ideas such as natural justice, fairness and justness. As there are no set rules regarding a judge’s recusal from a case, it completely lies upon a judge’s conscience and discretion to disclose any probable chances of conflict of interest. Recusal of judges is so far completely dependent on precedents.

In cases like Ranjit Thakur v. Union of India[12], it was said that “the proper approach that a judge should take is not to look at his own mind and ask himself however honestly, the question, Am I biased?, but to look at the minds of the parties before him”. This is a correct observation to be made by the court as in many cases parties or their lawyers bring it up before the judge that they have apprehensions regarding the judge’s biasness and prayers are made in front of the judge to recuse from the case. In Restatement of Values in Judicial Life[13] it was stated that a judge should not hear a matter regarding a company in which he has made investments or holds shares, unless he has discovered and disclosed the interest and no objection to his hearing and deciding the matter is raised. This document talks about things a judge shall not indulge in.

However, in case a request is made for recusal it is completely up to the judge to decide whether to recuse from a case or not. In some cases there might be no conflict of interest but an apprehension was raised the judges had recused from cases but on the contrary some judges refuse to recuse from cases. In 2019 Justice Arun Mishra had refused to recuse from a Constitutional bench which was formed to re-examine a judgement which he himself had delivered. Justice Mishra termed the requests for recusal as forum shopping and also added that abiding to the requests might compromise the freedom of the judiciary. In the Mamata Banerjee vs Suvendu Adhikari case Justice Kaushik Chanda had refused to recuse from the case as well. However, in the Ayodhya Ram Mandir case Justice U U Lalit had recused when he was reminded that he had appeared as a lawyer in a criminal case related to the said case. CJI Ramana had also recused from hearing a case where his personal interests clashed with the parties.

Recent Pronouncements

Many examples of judges recusing from hearing cases can be found in recent times. Justice Sanjeev Narula of Delhi High Court recused from hearing Juhi Chawla’s plea for waiver of rupees 20 lakhs cost in 5G case[14].

Next in a dramatic turn of events at the Calcutta High Court, Justice Kaushik Chanda recused from hearing West Bengal Chief Minister Mamata Banerjee’s petition challenging the election of BJP candidate Suvendu Adhikari from the Nandigram constituency. Justice Chanda at first had denied from recusing from the case, however, after Banerjee had filed a petition seeking Justice Chanda’s recusal, the Justice gave in and recused from the case[15]. There were many questions, which were raised by Justice Chanda in front of Dr Abhishek Manu Singhvi, who was appearing on behalf of Mamata Banerjee. The first and most important question being, why the aspect of recusal not been raised before the Bench on prior hearings?

We can take Justice Chanda’s case as an example. There were several factors, which played a role in Justice Chanda’s recusal. Most of the times these are the factors, which drive a judge to recuse from hearing a case.

  • The point of conflict of interest and bias is one of the most commonly used reasons for seeking a judge’s recusal from a case. In Justice Chanda’s case his association with the Bharatiya Janata Party (BJP) during his days as a lawyer, was pointed out by Dr. Singhvi. This might have been a pivotal cause in the petitioner asking Justice Chanda to recuse from the case as his association with BJP could have led the some or the other form or degree of personal bias in the judgment to come.
  • The media trials to which the judges are subjected can also act as a point driving to the recusal of the judges. The judges are usually not used to the scrutiny, which the supporters of the parties concerned in a case subject to them. Justice Chanda had questioned Dr. Singhvi as to if he recused from the case, will he be giving in to the media trial he was being subjected to?
  • Many of times when the judges are hearing high profile cases, they are often put at a fear of being dragged into a controversy. Which Dr. Singhvi did point out in the Nandigram election result case. He questioned Justice Chanda regarding whether it is worth it to continue in a case with so much controversy.[16]

Similarly, Justice Chandrachud had recused from hearing a case where the advocate appearing for one of the sides was a distant relative to Justice Chandrachud. This is a more personal reason, where the judge recused at his own discretion in order to assure that there is no bias involved and an unbiased judge or bench serves that justice. In this case, the judge is not coerced into recusing from the case.[17]

In another instance of a recusal, Chief Justice of India recused from hearing the dispute between Andhra Pradesh and Telangana regarding the Krishna river matter. Both the parties refused to mediate on the matter and CJI Ramana stated that he belongs to both the state and hence he does not want to adjudicate on the matter legally. This is again another case of personal discretion and discretionary bias on the part of a judge, and there is no coercion involved in the case.

Conclusion

It needs to be kept in mind that in the case of M.V, Thimmiah v. UPSC[18], the Supreme Court of India had thrown some words of caution stating that a plea of mala fide, favouritism and colourable exercise of power is generally raised by interested party, the court should not draw conclusions unless allegations are substantiated beyond doubt.

Now the question and the point of focus in this analysis is whether a judge’s recusal from a case actually a refusal to deliver justice? One might say that it is not a refusal to deliver justice. As in case, any judge recuses from a case the case is taken up by the Chief Justice of the concerned Court and is later assigned to a different bench. Hence, even if a judge recuses from hearing a case, at the end of the day it is being put forward to be heard by another judge and the plaintiffs ends up getting the justice they deserved. It is not about who delivers justice, it is all about whether justice has been delivered or not. As there are no rules and regulations regulating the recusal of judges from cases, the idea of recusal works on the principle of natural justice and the trend of recusal started as late as the 19th century in the Indian Judicial system. Hence, the idea of recusal has just seen its base in precedents and there lies no formulated formulae to guide recusal of judges.[19]

In the landmark case of the 2015, which held the National, Judicial Appointments Commission unconstitutional[20] Justice Kurian Joseph and Justice Madan Lokur had pointed out the need for judges to give reasons for recusal inorder to be more transparent and to also help in framing rules to facilitate the recusal process.[21]

The process of recusal plays an important role in maintaining transparency and also facilitates building of trust between the common masses and the judiciary. It also makes sure that justice is served without any prejudice or biasness whatsoever. Bias is an inbuilt human tendency and no human being is pardoned from it. However, the concept of recusal and the freedom that the lawyers and the parties to a  case have to point out any apprehensions of any biasness without any fear keeps up the spirit of justice and also upholds the superiority and the freedom of the judiciary. Recusal or the prayers for recusal make sure that justice is served and also help in overcoming problems such as bias. However, taking notes from the proverb “too much of anything is good for nothing” it needs to be kept in check that people do not jump from judge to judge stating the same apprehension of bias from every judge. This will not only waste the court of law’s time but will also be a question on the decision of the freedom our judiciary and also the people enjoy. It needs to be remembered that many a times prayer for recusal is made merely in the hope of getting the judgement in one’s favour and not due to any reasonable apprehension of any kind of bias. Many Judges including Justice GS Patel of the Bombay High Court and also Justice Chandrachud and Justice MR Shah highlighted these ideas. There needs to be a fine line between valid prayers for recusal and the frivolous ones. Some guidelines also need to be set up regarding why and how a judge can recuse from a case and also records should be maintained for the same, as without any guidelines governing the process of recusal it has become a child’s play which is hampering the freedom and wasting the time of the judiciary.


References

[1] Wayne P. Pomerleau, Western Theories of Justice, Available at https://iep.utm.edu/justwest. (Last visited on October 8 2021)

[2] Denise Evans, Adjudication and Aristotelian Justice, Available at https://www.fairwayresolution.com/resources/whats-new/adjudication-and-aristotelian-justice. (Last visted on October 8 2021)

[3] Discussion on The Principles of Natural Justice | Crack UPSC CSE 2020/2021 | Dr. GL Sharma, March 17 2020, Available at https://www.youtube.com/watch?v=4FU0_gLv8QA. (Last visited on October 11 2021)

[4] H.W.R Wade, Administrative Law (1967) 154.

[5] Haryana Financial Corpn v. Kailash Chandra Ahuja, (2008) 9 SCC 31. See also, Dharampal Satyapal Ltd. v CCE, (2015) 8 SCC 519: (2015) 320 ELT 3.

[6] Doctrine of Bias | Principle of Natural Justice | Administration Law, September 18 2019, Available at https://www.youtube.com/watch?v=CNqHO9PGMfo&list=PLh5Hcgb8LbU6RZgZYpEe4EFJ1tAxxHVND&index=15. (Last Visited on October 17 2021)

[7] AIR 1960 SC 468.

[8] Metropolitan Properties Co. (FGC) Ltd. v. Lannon, (1969) I QB 577; (1968) 3 WLR 694 (CA).

[9] Prof. (Dr) I.P. Massey, Administrative Law (9th Edition, 2017).

[10] Ibid.

[11] (1881) 45 LT 439 (DC).

[12] Ranjit Thakur vs Union Of India And Ors 1987 AIR 2386, 1988 SCR (1) 512.

[13] RESTATEMENT OF VALUES OF JUDICIAL LIFE, 1997, Rule 11.

[14] Ms. Juhi Chawla & Ors. vs Science And Engineering Research, 4 June 2021.

[15] Mamata Banerjee vs Suvendu Adhikari, July 7, 2021.

[16] Akankshya Anuska Babu, Is a judge’s recusal from a case actually a refusal to deliver justice, September 15 2021, Available at http://dhunt.in/lVwO5?s=a&uu=0xb0ac570d4db4651c&ss=wsp. (Last visited October 1 2021)

[17] Mehal Jain, Justice DY Chandrachud Recuses from hearing a case on the ground that advocate happened to be a relative, December 15 2020 Available at https://www.livelaw.in/top-stories/justice-dy-chandrachud-supreme-court-recused-matter-bci-rules-167230. (Last visted on October 18 2021)

[18]  (2008) 2 SCC 119.

[19] Akankshya Anuska Babu, Is a judge’s recusal from a case actually a refusal to deliver justice, September 15 2021, Available at http://dhunt.in/lVwO5?s=a&uu=0xb0ac570d4db4651c&ss=wsp.(Last visited October 1 2021)

[20] Supreme Court Advocates on Record Association vs Union of India, Writ Petition (Civil) no. 13 of 2015.

[21] Apurva Vishwanath, Explained: How judges recuse from case, and why, June 23 2021, Available at https://indianexpress.com/article/explained/how-judges-recuse-from-cases-and-why-7371106. (Last visited October 18 2021)

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