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

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

  • 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.

Key Highlights of the Judgement

  • 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.

Recusal of Judges

  • 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.

Reasons for recusal

  • 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 process for recusal

  • 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.

Can a judge refuse to recuse?

  • 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.

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. Some explain the reasons in their order.


Threat to Judicial Independence

  • 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.

Delay in justice delivery

  • Recusal may cause obstruction and delay the proceedings of the Courts.

No fixed rule for recusal

  • 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.

Exam Track

Prelims Take Away

  • Recusal