Take a look at the essential events, concepts, terms, quotes, or phenomena every day and brush up your knowledge. Here’s your UPSC Current Affairs knowledge nugget for today on Recusal of Judges.
Rejecting the pleas filed by former Delhi Chief Minister and AAP national convenor Arvind Kejriwal and five others, Justice Swarana Kanta Sharma of the Delhi High Court on Monday (April 20) refused to recuse herself from hearing the excise policy case. She noted that the recusal applications did not arrive with evidence but rather “with aspersions, insinuations and doubts” cast on Justice Sharma.In this context, let’s understand: What is the recusal of judges? How and why do judges recuse themselves from cases?
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Key Takeaways:
1. When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception that she carried a bias while deciding the case.
2. The conflict of interest can be in many ways — from holding shares in a company that is a litigant to having a prior or personal association with a party involved in the case.
3. The practice stems from the cardinal principle of due process of law that nobody can be a judge in her own case. Any interest or conflict of interest would be a ground to withdraw from a case since a judge has a duty to act fair.
4. Another instance for recusal is when an appeal is filed in the Supreme Court against a judgement of a High Court that may have been delivered by the SC judge when she was in the HC.
Natural justice and Nemo Judex In Causa Sua
Natural justice is a concept of common law and represents higher procedural principles, which every judicial, quasi-judicial and administrative agency must follow while taking any decision affecting the rights of a private individual. Natural justice implies fairness, equity and equality. The twin anchors on which the principles of natural justice rest in the judicial process, whether quasi-judicial or administrative in nature, are the following:
1. Nemo Judex In Causa Sua, i.e., no person shall be a judge in his own cause, as justice should not only be done but should manifestly be seen to be done.
2. Audi Alteram Partem, i.e., a person affected by a judicial, quasi-judicial or administrative action must be afforded an opportunity of hearing before any decision is taken.
Process for recusal
1. There are no formal rules governing recusals, although several Supreme Court judgments have dealt with the issue.
2. In Ranjit Thakur v Union of India (1987), the Supreme Court held that the tests of the likelihood of bias is the reasonableness of the apprehension 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,” the court had held.
3. “A Judge shall not hear and decide a matter in a company in which he holds shares… unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised,” states the 1999 charter ‘Restatement of Values in Judicial Life’, a code of ethics adopted by the Supreme Court.
4. The decision to recuse generally comes from the judge herself as it rests on the conscience and discretion of the judge to disclose any potential conflict of interest. In some circumstances, lawyers or parties in the case bring it up before the judge. If a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.
5. Notably, once a request is made for recusal, the decision to recuse or not rests with the judge. While there are some instances where judges have recused even if they do not see a conflict but only because such an apprehension was cast, there have also been several cases where judges have refused to withdraw from a case.
6. Since there are no formal rules governing the process, it is often left to individual judges to record reasons for recusal. Some judges disclose the reasons in open court; in some cases, the reasons are apparent.
7. In a landmark verdict in 2015 holding that the National Judicial Appointments Commission as unconstitutional, Justice Kurian Joseph and Justice Madan Lokur had referred to the need for judges to give reasons for recusal to build transparency and help frame rules to govern the process.
BEYOND THE NUGGET: Anticipatory bail
With anticipatory bail back in focus after the Supreme Court of India refused to extend the transit anticipatory bail earlier granted to Pawan Khera by the Telangana High Court, it is important to understand what anticipatory bail means.
1. Black’s Law Dictionary (4th edition) describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.”
2. As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest made.
3. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) contains provisions for anticipatory bail in Section 482 (earlier Section 438 of the Code of Criminal Procedure). The provision empowers only the Sessions Court and High Court to grant anticipatory bail.
4. Sub-section (1) of the provision reads: “When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”
5. In the 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).
Post Read Questions
(1) With reference to the recusal of judges, consider the following statements:
1. The Constitution of India provides detailed procedures governing recusal of judges.
2. A judge must mandatorily record reasons in writing while recusing from a case.
3. The decision to recuse comes from the judge as it rests on the conscience and discretion of the judge.
How many of the statements given above are correct?
(a) Only one
1. In anticipatory bail, a person is directed to be released on bail even before an arrest is made.
2. The Sessions Court and High Court can grant anticipatory bail.
Which of the statements mentioned above is/are correct?
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