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Judge’s Recusal

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February 20, 2020

Why in News?

A Supreme Court (SC) judge recused from hearing a petition against the government’s move under the Public Safety Act.

What is the story so far?

  • The petition was against the government’s move to charge former Jammu and Kashmir CM Omar Abdullah under the Public Safety Act.
  • The petition was filed for issuance of habeas corpus writ for authorities to produce Mr. Omar Abdullah before the SC and set him at liberty.
  • After the SC judge recused, the case was finally heard by another bench.

What is Recusal?

  • Recusal is the withdrawal of a judge, prosecutor, or juror from a case.
  • It usually takes place when a judge has,
    1. A possible conflict of interest or
    2. A prior association with the parties in the case which may lead to lack of impartiality.

What are the rules on recusals?

  • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts.
  • It is left to the discretion of a judge.
  • The reasons for recusal are not disclosed in an order of the court.
  • The decision to convey the reasons rests on the conscience of the judge.
  • At times, parties involved raise apprehensions about a possible conflict of interest.
  • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

Should the reasons be put on record?

  • Justice (now retd.) Kurian Joseph talked about this in his opinion in the National Judicial Appointments Commission judgment, 2015.
  • He highlighted the need for judges to give reasons for recusal as a measure to build transparency.
  • He wrote that it is the constitutional duty of a Judge, as reflected in one’s oath, to be transparent and accountable.
  • Another judge, Justice (retd) Madan B. Lokur agreed that specific rules require to be framed on recusal.

What happened in recent cases?

  • Judge Loya case - In 2018, petitioners in the Judge Loya case sought the recusal of SC judges from the Bench.
  • The court refused the request and observed that recusal would mean abdication of duty.
  • Assam’s detention centres case - In 2019, the then-Chief Justice Ranjan Gogoi was asked to recuse himself in the middle of a hearing of a PIL filed about the plight of inmates in Assam’s detention centres.
  • Justice Gogoi said that a litigant cannot seek recusal of the judge.
  • The court observed that the judicial functions may involve performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision.
  • If the assertions of bias as stated are to be accepted, it would become impossible for a judge to seek clarifications and answers.

Why did Justice Arun Mishra argue against recusal?

  • He refused to recuse himself from the Constitution Bench hearing a question of law on the Indore Development Authority v. Manohar Lal.
  • The issues involved in the case were related to a reading of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
  • The petitioners had objected to Justice Mishra leading the Constitution Bench which was hearing a question of law challenging his own earlier judgment in the case.
  • Justice Mishra said accepting reluctantly the wishes of parties to recuse himself would sound the death-knell for judicial independence.

 

Source: The Hindu

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