Judges` recusal
BY A . G. N00 R A N I | 5/30/2015

ALTHOUGH there has been a spate of cases in India of judges of the Supreme Court recusing themselves from hearing a case, it is hard to distil clear principles as a guide for the future.

The five-member bench currently seized of the constitutional validity of the National Judicial Appointments Commission Act faced recusals by two judges. The act is designed to replace the `collegium` which nominates judges for appointments to the Supreme Court and the high courts.

Demands were made on April 22 for the presiding judge Justice J.S. Khehar`s recusal on the ground that he was part of the collegium. The bench unanimously rejected the demand. Earlier another judge on the bench declined to sit.

In 2009, R.V. Raveendran, one of the three judges hearing the case between the Ambani brothers concerning the gas dispute, recused himself on the ground that his daughter was a partner in the law firm advising one of the brother son other projects.

Another judge, Markandey Katju, recused himself from another case between a private corporation and a public-sector undertaking on the ground that his wife held shares in the corporation. He did so after he had reserved the case for judgement two months earlier.

Around this time, S.H. Kapadia, who was in line for appointment as India`s chief justice, declined to be part of a bench as he was a shareholder of a litigant`s sister company.

The Restatement of Values of Judicial Life reads: `A judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

It is unfair and impermissible to let the bar decide whether or not a judge should recuse himself. Lawyers who practise in the court appear day in and day out before the same judges. Principles are involved and they should be clear enough to guide the judge himself to decide his course at the very outset; not belatedly at the expense of public time.

The US Supreme Court`s practice is to let the judge decide for himself. This can lead to strange results. In a famous instance, Justice Scalia refused to recuse himself in a case affecting vice president Dick Cheney, a friend with whom he had gone out on a government plane for a hunt.

The law is clear. A judge `shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned`. Scalia`s sneering retort betrayed his awareness of its relevance. `If it is reasonable to think that a Supreme Court justice can be brought so cheap, the nation is in deeper trouble than I had imagined.

In the Pinochet case, the House of Lords set aside its own previous decision because one of the judges, Lord Hoffmann, was a director of the Amnesty International Charitable Trust and his wife worked at its secretariat. Amnesty had campaigned against granting immunity to the former Chilean dictator who, it held, was responsible for torture, extrajudicial execution and disappearances. Amnesty plainly had a `non-pecuniary interest`. The case was ordered to be reheard afresh.

Lord Hutton said that the interest of a judge in the subject matter of the case `arising from his strong commitment to some cause or belief ... could shake public confidence in the administration of justice` and result in rendering his decision bad in law, entailing its rejection by a superior court.

The belief can be political or religious, and rejection can be by the higher court or by public opinion. No one suggested that Lord Hoffmann was guilty of actual bias.

What was at stake was a principle and public confidence in the administration of justice.

Judicial Recusal, a definitive work by Grant Hammond, provides a wealth of precedents. In the 19th century, the rule was strict. Disqualification was directed to `any direct pecuniary interest, however small`. In the last century, the test was `real possibility of bias` with the proviso that `prudence naturally leans on the side of being safe rather than being sorry`.

The US statute on recusal says ` (a) any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

`(b) He shall also disqualify himself in the following circumstances: where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ... He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.` This is a useful model to emulate.• The writer is an author and a lawyer based in Mumbai.

Published in Dawn