No one can insist that judge disclose reason for recusal: Delhi HC

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Last Updated17/04/2022

The Delhi High Court has observed that an investigation into the cause or reason for recusal by a judge would itself be an interference with the course of justice.

When a judge recuses, no litigant or third party has any right to intervene, comment or enquire.
The recusal has to be respected, whether a reason has been spelt-out in detail or not.

Had a judge refrained from giving a reason for recusal, no one can insist on the judge making such disclosures.

It would be setting out on a precipice (hazardous situation), if a Judge who recuses for disclosed or undisclosed reasons, was then sought to be examined on oath in a complaint case, on the pretext of enquiring into a possible corruption case, and to be compelled to make disclosures under oath that in its considered view were not required while recusing

The observation of the Delhi High Court came in the case of Sherry George vs Govt. of NCT of Delhi.
The petitioner, who is the director of a local firm, was embroiled in a litigation with another firm and the Metropolitan Magistrate hearing the case decided to recuse.
The Metropolitan Magistrate, in an August 2017 order, recorded that he/she was approached by someone known in order to influence the court.
The woman, in her plea, argued that the Metropolitan Magistrate had held that few persons were trying to influence the hearing. Hence, the identity of those persons should be established.
She sought an FIR for the investigation of the matter. The High Court, however, dismissed the plea.

It is the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer.
The doctrine of judicial recusal requires a Judge, who has been appointed to hear and determine a case, to stand down from that case.
The practice stems from the cardinal principle of due process of law that nobody can be a judge in her own case.

When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception of biasness while deciding the case.
The conflict of interest can be in many ways:
- Holding shares in a company that is a litigant;
- Having a prior or personal association with a party involved in the case.
- Appeared for one of the parties involved in a case.
- Ex parte communications with lawyers or non-lawyers.
Another instance for recusal is when an appeal is filed in the SC against a judgement of a HC that may have been delivered by the SC judge when he/she was in the HC.

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. Once a request is made for recusal, the decision to recuse or not rests with the judge.
There are no formal rules governing recusals, although several Supreme Court judgments have dealt with the issue.
The basic principle of judicial conduct is in taking the oath of office.
Judges promise to perform their duties, to deliver justice, without fear or favour, affection or ill-will.
In Ranjit Thakur v Union of India, the SC held that the test of the likelihood of bias is the reasonableness of the apprehension in the mind of the party.
Judges should look at the mind of the party before him rather than asking himself about the biasness.
In Supreme Court Advocates-on-Record Association v. Union of India, Justice Chelameswar held that
Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken.
If a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.

Once a request is made for recusal, the decision to recuse or not rests with the judge.
There have also been several cases where judges have refused to withdraw from a case.
- For instance, in 2019, Justice Arun Mishra had refused to recuse himself from a Constitution Bench set up to re-examine a judgement he had delivered previously.

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. Some explain the reasons in their order.

Litigants often try to use this tool to cherry-pick a bench of their choice. This might affect judicial fairness and hence independence.
Judicial functions, sometimes, require asking questions and soliciting answers to arrive at a just and fair decision.
If the assertions of bias are to be accepted, it would become impossible for a Judge to seek clarifications and answers.

There are no rules to determine when the judges could recuse themselves.
Hence, there are different interpretations of the same situation.
- E.g., In the Ayodhya-Ramjanmabhoomi case, Justice U ULalit recused himself from the Constitution Bench.
This was after the litigants brought to his attention that he had appeared as a lawyer in a criminal case relating to the case.

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