Recusal of judges has always been controversial, particularly if they are at the highest court and in highly sensitive cases.  The recent recusal by Justice Raveendran from the RIL-RNRL case reminds one of the stirring words of Justice Antonin Scalia -  "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined." In 2004, Justice Scalia of the US Supreme Court refused to recuse himself in a case where the former Vice President Dick Cheney's actions were being questioned merely because he had gone on a duck-hunting trip earlier with a group which included Cheney.

There has been a spate of recusals on the Indian Supreme Court. What is puzzling is that Justice Raveendran, whose judgements reflect the rare combination of depth and simplicity, has in the same case and within few days offered two different standards for recusal.  At the beginning of the RIL-RNRL dispute, Raveendran offered to recuse himself since he held shares in RIL and RNRL and counsel did not object to his presence. Within a few days after the hearing commenced, Raveendran recused himself because his daughter was working in a law firm which was advising (as opposed to the daughter herself) RIL in a global acquisition, which is completely unrelated to the dispute before the Court. This is not the only recusal. Justice Kapadia had offered to recuse himself on account of holding shares in Sterlite when a case related to that company came up before him whereas Justice Markandey Katju recused himself since his wife held shares in RIL when the RIL-NTPC dispute came up before him.

This does raise a larger question - when faced with a conflict of interest what standard should judges across the country follow? Should a judge recuse or should they merely offer to recuse?  The Supreme Court precedent and history offers a clear guide.

The Supreme Court right from its inception has consistently made a distinction between pecuniary interest and non-pecuniary interest. In case of pecuniary interest, the judge has to automatically recuse himself from the case and no further inquiry is required.  The rationale is simple - once a judge has an interest in the outcome of the case, he is no longer an independent adjudicator. But in case of a non-pecuniary interest, the question to be asked is whether there is a there is a reasonable ground to believe that the judge will be biased on account of the non-pecuniary interest. 

Raveendran's recusals are indeed ironical - he has offered to recuse when he ought to have recused on account of his pecuniary interest and recused himself when the non-pecuniary interest did not create any reasonable basis to attribute bias.

The Court's history offers a useful guide. In 1964, Chief Justice P.B. Gajendragadkar was presiding over a bench which was examining the validity of the quantum of compensation paid for a land acquisition. Purushottam Trikamdas, a lion of the Bar, intervened on behalf of certain land owners whose land was being acquired and asserted that the Chief Justice Gajendragadkar should not hear the case since he had a pecuniary interest in the subject-matter of the litigation because he was a member of a co-operative society for whose behalf the land was being acquired. The Chief Justice asked the Attorney General C.K. Dafthary whether he should recuse and Dafthary told the Chief Justice that he should. The Chief Justice reconstituted the Bench headed by Justice Subba Rao which declared the actions of the Government as unconstitutional. (This piece of history is recorded in a footnote in the eminent constitutional law jurist H.M.Seervai's magnum opus, Constitutional Law of India, Vol II, page 1736)

The Supreme Court's 1997 Resolution - Restatement of Values of Judicial Life - mandating a judge to disclose his shareholding interest and proceed with hearing the case only if there is no objection from the parties does not accurately restate the legal position and should be revised for the following reasons.

First, the 1997 Resolution is inconsistent with the law laid down by the Supreme Court.  Holding shares in a company is a clear case of pecuniary interest and the Supreme Court itself right from 1952 has affirmed the principle that a pecuniary interest, however small, automatically disqualifies the judge. The 1997 Resolution allows the judge to proceed with the hearing of the case if the counsel for the parties does not have any objection, even if the judge has a majority or a significant shareholding in a company.  The law declared by the Supreme Court is binding and prevails over a Resolution passed by the Supreme Court.

Second, the 1997 Resolution relies upon the waiver by the counsel to shield the judge from any imputation of bias. When the discretionary powers of the judges have tremendously increased over the years, trusting counsel - who routinely appear before the same judges in several cases day in and day out - to object to their participation in one case is not exactly an ideal mechanism to protect the high image of the Indian judiciary.

Raveendran's final recusal from the bench raises a larger question. Should a judge recuse merely because a party before the Court is a client of the law firm which employs the judges relative, irrespective of whether the relative is actually involved in advising the client? By this standard, any judge who has a relative working in a leading law firm would be barred from hearing any case of the client of that firm. While Raveendran's offer of recusal has diluted the recusal standard in case of pecuniary interest, Raveendran's recusal has extended the standard in case of non-pecuniary interest. 

Vivek Reddy is a practicing lawyer at the Supreme Court of India and the Andhra Pradesh High Court. 

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