ETHICS OF RECUSAL: INDIAN JUDICIARY IN GLOBAL PERSPECTIVE

Recently, the Excise Policy Case, where Arvind Kejriwal is an accused, was in the limelight because he argued before the judge of Delhi High Court to recuse herself from hearing the case. The judge dismissed his plea and her refusal to recuse sparked intense debate about bias, independence and litigant confidence. In a fresh twist in the ongoing appeal, the judge has, a couple of days ago, opted out of hearing the main appeals as she has initiated criminal contempt proceedings against the accused and other functionaries of his party. This action has been triggered by what the court described as an online “campaign of vilification” involving “extremely vilifying, extremely contemptuous and defamatory material” posted on social media against the Judge and the judiciary. The established law of contempt and judicial discipline entail that a judge who draws up contempt proceedings in a matter cannot continue to hear the underlying substantive case. The judge clarified that she stands by her recusal order and that she is transferring the case.

Impartiality in dispensing justice has been a cornerstone of ancient Vedic culture. In Rig Veda 7.89.3, a hymn is addressed to Mitra and Varuna, invoking their impartiality in judgment. This verse praises them as impartial judges, bound by truth and order. The emphasis on fairness and unbiased judgment translated into judicial ethics. Manusmriti verse 8.12 sets the ethical foundation: if a judge is personally connected or emotionally compromised, he must withdraw. Manusmriti verse 8.20 provides that a judge “shall not adjudicate cases involving his own relatives, friends, or enemies.” Further, verse 8.45 says “The judge must avoid deciding cases where he has a personal stake, lest dharma be corrupted.” This anticipates the modern principle of conflict of interest. Similarly, Narada Smriti verse 1.1 establishes the principle that even the appearance of bias invalidates justice.

The modern recusal doctrine envisages a judge to voluntarily, or upon request, step aside from hearing a case to avoid bias or conflict of interest, ensuring fairness and impartiality in judicial proceedings. The term “recuse” originated from the Latin word “recusare”, meaning “to demur”, or “object”, reflecting the fundamental principle of rejecting participation when impartiality is in doubt. The core idea is that the judges should not preside over cases where neutrality may seem to be compromised.

Judicial recusal practices worldwide are designed to safeguard impartiality and public trust in courts, but the standards vary across jurisdictions - from strict statutory rules in the US to more discretionary approaches in common law countries, including India. In the United States, a federal law (28 U.S.C. § 455) requires recusal when impartiality “might reasonably be questioned.” The grounds for recusal include personal bias, prior involvement, financial interest, or family ties. In the United Kingdom, recusal is rooted in common law principle laid down by Lord Hewart in the case of Rex v. Sussex Justices (1924 1 KB 256) that justice must not only be done but also be seen to be done. Judges there often recuse themselves voluntarily to maintain public confidence. In Civil Law countries, e.g. France and Germany, codified laws list explicit grounds for recusal, such as, family relations, financial interest, and prior involvement, etc.

On the contrary, there is no codified statute in India in this respect. Here discretion is high, leading to the criticism about lack of consistency and transparency in recusal decisions. However, judges are mainly guided by judicial precedents laid down by the Supreme Court of India from time to time in a catena of judgments: a) The Supreme Court propounded in Ranjit Thakur v. Union of India (1987 4 SCC 611) that bias must be judged from the perspective of a “reasonable man”- justice must not only be done but appear to be done; b) In the case of State of West Bengal v. Shivananda Pathak (1998 5 SCC 513) it said recusal is a matter of judicial conscience; judges must decide for themselves whether to step aside; c) In Supreme Court Advocateson-Record Association. v. Union of India (2015 13 SCC 1), commonly known as the Fourth Judges case, Supreme Court laid down that the judges should recuse only when there is a genuine likelihood of bias, not merely because of criticism or pressure; and d) the Supreme Court further opined in Indore Development Authority v. Manohar Lal (2020 8 SCC 129) that recusal should not be used to “bench hunt.”

Besides the foregoing precedents, the judges also follow ethical norms set forth in foundational document titled the Restatement of Values of Judicial Life (adopted in 1997), which outlines essential ethical standards for judges in India, emphasising: i) integrity; ii)) judicial independence; iii) impartiality; iv) avoiding conflict of interest; v) aloofness and dignity; public expression and political neutrality; vi) transparency; and vii) accountability. This moral code serves as a moral compass for the judges and continues to shape judicial conduct in India.

Later, to ensure judges’ ethical behaviour, the Bangalore Principles of Judicial Conduct were adopted in 2002 by a group of judicial representatives under the auspices of United Nations to provide a global framework for judges to uphold high ethical standards and to maintain public confidence in the judiciary.

Though not legally binding, these principles articulate comprehensive and universal ethical framework for judicial conduct: i) Judges must be free from external pressures; ii) Justice must be delivered without bias, favouritism, or prejudice; iii) Judges must uphold honesty and moral soundness; iv) Judges should avoid impropriety, including personal conduct; v) Judges must prevent discrimination; and vi) Judges must maintain professional competence, work efficiently, and deliver justice without undue delay.

Evidently, judicial recusal is a cornerstone of judicial integrity, balancing impartiality with independence. The global trend is toward recognising not just actual bias but also the appearance of bias, ensuring courts remain credible in the eyes of the public. There are many instances in India where judges have often recused themselves from hearing the cases, mostly because of prior professional involvement, conflict of interest, etc. However, judges have to be wary of the parties when they misuse recusal requests to delay the judicial proceedings or to remove unfavourable judges. Undoubtedly, judicial independence is critical, else courts risk becoming arenas of political manoeuvring. A plea to stretch the principle of “reasonable apprehension of bias” beyond its legal limits may be a political strategy rather than a legitimate judicial concern. Indian precedents make it clear that recusal must be rooted in law and conscience and not litigant preference.

THE VIEWS EXPRESSED BY THE AUTHOR ARE PERSONAL

Shrawan Sawhney, The author is IAS (Retd.)