Judicial Recusal

  Jun 15, 2020

Judicial Recusal

What is judicial recusal?

Judicial recusal is the act of abstaining from participation in an official action such as a legal proceeding by a judge. The reasons can be apparent or actual conflict of interest or any other. The basis for judicial recusal is that popular expectations of objective and impartial justice requires due process to be followed. 

What is the basis for judicial recusal?

The doctrine of recusal is based on the following: R vs Sussex Justices, ex parte McCarthy (1924) is a leading English case on the impartiality and recusal of judges. It is well known for stressing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. It made famous the aphorism "Not only must Justice be done; it must also be seen to be done."

It is axiomatic   that no one should be a judge in his or her own case. Courts must ensure that the rulings that they pronounce are without bias- both in fact and in perception. 

Why is the doctrine being debated now?

The question of recusal came up of late due to the Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Its interpretation by the apex court has become subject to national debate.  

Interpretation relates to the term “compensation has not been paid” in Section 24(2).

Can you contextualise Pune Municipal Corporation and Indore Development Authority cases?

The Supreme Court in the case of Pune Municipal Corporation case held that land acquisition can lapse under section 24(2) of the Land Acquisition Act of 2013, if compensation has not been deposited in the bank accounts of the land owners or with the court.

In its judgment in the Indore Development Authority case, this three-judge Bench held that if a landowner refuses compensation, depositing the compensation with the treasury was sufficient and there was no obligation on the State to deposit the same in court.

More importantly, this Bench declared the ratio in Pune Municipal Corporation on the said issue to be ‘per incuriam (a decision arrived without due regard to law or facts).

Thus, a 3 judge Bench by a 2:1 majority in Indore Development Authority set aside a 2014 decision in Pune Municipal Corporation by another 3 judge Bench.

What happened next?

Later, another three-judge bench of the Supreme Court noted the two conflicting three-judge Bench judgments and referred the case to the Chief Justice of India for setting up a Constitution Bench to decide the issue. In 2019, CJI Ranjan Gogoi notified the Constitution Bench for hearing the said case. Justice Arun Mishra, who had authored one of the conflicting decisions, was chosen to head the Bench that will decide the issue.

How strong is the case for judicial recusal in India?

In India, the faith in the impartiality of the judge is implicit as can be seen below:

  1. Review petition is heard by the same judges
  2. Curative petition questions the motives of the judges that gave the verdict and it is heard by the same judges
  3. Apex court judges can hear the cases of contempt of itself.

Thus, recusal is only a matter of addressing a perception unless there is a pecuniary interest of the judge in a given case. Further, if the case involves any family member or relative, recusal becomes inevitable.

It may be necessary to have guidelines on recusal and its refusal.