Recusal of Judges
Recently, two Supreme Court judges — Justice Indira Banerjee and Justice Aniruddha Bose — have recused themselves from hearing cases relating to West Bengal.
What is Recusal of Judges ?
- 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.
- 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.
- 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.
- 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.
What is the process for recusal of judges?
- 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.
- There are no formal rules governing recusals, although several Supreme Court judgments have dealt with the issue.
Can a judge refuse to recuse?
- 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.
Do judges record reasons for recusal?
- 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.
- 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.
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