As Bar & Bench continues its Recusal Watch series, a point commonly raised is that to say that a judge has recused from a case means nothing, unless we also report the reasons for the recusal.

While we agree with the broad tenor of this criticism, it also underlines the importance of making intelligent guesses about the reasons for the recusals, given that the judges, in general, tend to be reticent about them.

Independence and impartiality, it is said, are the two pillars without which justice cannot stand, and the purpose of judicial recusal is to underpin them. But despite its significance, neither the circumstances under which judges recuse, nor the procedures for identifying them are clear enough. It is a paradox that a judge has to sit in his own cause, in order to decide whether he could do so.

The purpose of this column, is therefore, to identify those circumstances, and understand the procedures that enable them, even if we can only succeed partially. The purpose is to at least record the bare details of the recusals, and leave the reasons for recusals to be inferred by the readers.

The reasons for recusals are endless. A judge is not under any legal obligation to disclose a connection with the case, namely, holding of shares in a company, being a junior of the senior counsel in the past, one of his former juniors being listed as a lawyer for one of the parties, having dealt with the case earlier at the high court, etc.

But this column is mostly about voluntary recusals by judges, who don’t disclose reasons why they are recusing from a case.

Methodology

In order to find out which judge recused from which case, we used the Free Text search option under the Daily Orders tab on the Supreme Court website, and used different combinations of keywords generally used by the judges while recusing. The time period was from January 2 to December 16, the last working day of the year.

Different combinations of  keywords were used separately to generate search results, and after removing the overlapping cases, we got a near-exhaustive, if not 100% accurate list. We numbered the cases separately, even if more judges recused from hearing the same case, as it is the act of recusal, rather than the actual number of cases, that should count in the analysis. As the number of more than one judge recusing from the same case is more an exception than the rule, this is unlikely to have an impact on the results.

What the 2017 data shows 

Data culled out from the Supreme Court’s website shows that in 2017, 28 judges recused from at least 376 cases. The annual data on recusals is interesting for what it reveals and what can be inferred.

First let us take a look at what it reveals.

Our data shows that there were two judges who had to recuse from cases more frequently than other judges, and both had been directly elevated from the Bar. They were Justices Uday Umesh Lalit and L Nageswara Rao.  Justice Lalit was elevated to the bench in 2014, while Justice Rao was appointed in 2016. Our research shows that both recused from hearing 43 cases each during the year.

The other judge who was directly elevated from the Bar was Justice Rohinton Fali Nariman. In terms of the number of recusals, Justice Nariman comes fourth, with 27 recusals.

Justice AM Khanwilkar occupies the second position, with 37 recusals, while Justice RK Agrawal comes third, with 29 recusals during the year.

Before his elevation to the Supreme Court, Justice Khanwilkar was the Chief Justice of Madhya Pradesh High Court, while Justice Agrawal had served as the Chief Justice of the Madras High Court. Justice Khanwilkar was appointed to the Supreme Court on May 13, 2016, while Justice Agrawal was elevated on February 17, 2014.

Justice Abhay Manohar Sapre, who was elevated to the Supreme Court on August 13, 2014, had served as the Chief Justice of the Gauhati High Court for about 10 months. He comes fifth, with 22 recusals.

Justice Sanjay Kishan Kaul gets the sixth position with 19, while CJI Dipak Misra comes seventh with 18 recusals.

Of the remaining judges, the number of recusals varied from 14 to two.

Here is the break-up:

What can be inferred from the results

Now, the intriguing question why some judges have recused more than others, must be answered. If you look at the data closely, keeping in mind the background of the judges before their elevation, it is clear that the profile of the judges plays a major role in deciding the number of recusals.  The profile of the judges must be considered along with the geographical diversity of the high courts they hail from in the case of those who were not directly appointed from the Bar.

Certain high courts contribute more SLPs than others. Research carried out by Nick Robinson has shown that high courts more proximate to the Supreme Court or those which attract wealthy litigants are more likely to generate more appeals. Thus, he found that appeals from the High Courts of Delhi, and Punjab and Haryana represented a larger portion of the Supreme Court’s docket than the High Courts of Bombay, Allahabad or Madras, which hear far more cases.

According to his study, in 2011, appeals from the Punjab and Haryana High Court contributed 18.6 per cent of SLPs, while the Delhi and Bombay High Courts contributed 10.6 and 10.5 per cent respectively. The contribution of Allahabad High Court for the same year was 10.5 per cent, while 6.4 and 5.4 per cent came from the Karnataka and Madras High Courts respectively.

As Supreme Court judges usually serve at more than one high court before their elevation, the number of cases which they might have heard or decided earlier as high court judges get appealed in due course, forcing them to recuse from hearing them at the apex court.

Justice Khanwilkar practised as an advocate for 18 years, after which he served at three different high courts. Justice Sapre served five high courts, namely, Madhya Pradesh, Rajasthan, Chhattisgarh, Manipur and Gauhati, before his elevation to the Supreme Court in August 2014.

On the contrary, Justice Ramana had been the judge of the Telangana and Andhra Pradesh High Court from 2000, becoming its Acting Chief Justice for two months, before his elevation as the Chief Justice of the Delhi High Court in September 2013. He was appointed to the Supreme Court in February 2014. As not many cases from High Court of Judicature at Hyderabad (3.9% as of 2011) reach the Supreme Court in the form of SLPs, as compared to the high courts in the Hindi heartland, Justice Ramana has no compulsion to recuse as frequently as his brother judges.

Judges elevated from the Bar

Justices Lalit and Rao belong to a class of Senior Advocates who argued a large number of cases for private parties. Justice Rao practised in the Supreme Court for more than 20 years, besides being Additional Solicitor General for more than two years. Justice Lalit has 28 years of practice as an advocate.

Justice Rohinton Fali Nariman, also a direct recruit from the Bar, has practised law for the last 35 years, and had over 500 reported judgments to his credit at the time of his elevation. However, as he was the Solicitor General of India from July 27, 2011 to February 4, 2013, the number of private cases which he might have argued before his elevation is probably less, which explains why he had to recuse from hearing fewer cases than the other two judges who were directly recruited from the Bar.

Having represented many private parties and public authorities previously, the judges directly appointed from the Bar might have known and interacted with many persons associated with cases which get listed before them. This familiarity with the stake-holders forces a judge to recuse in order to maintain impartiality. The judges may not choose to disclose the reasons for such recusals, but the lawyers may know, and choose to respect their decision.

Reasons for Recusal

The two cases from which Justice Ramana recused from hearing do not throw any light on the probable reasons for his recusal. The first is the Lower Painganga Project, Jirman Samassya Nirwaran & Punarwasan Kalyankari Sanstha, Ghatanji v. State of Maharashtra, which was an SLP originating from a Bombay High Court judgment. Justice Ramana recused from hearing this on January 30.

The second was UP Public Service Commission v. Manoj Kumar Yadav, which he recused from hearing on November 21, while sitting with Justice S Abdul Nazeer. The matter, a civil appeal against a judgment of the Allahabad High Court, was previously heard by him once on October 12.

Of the two recusals by Justice Kurian Joseph, one is instructive, and is consistent with his avowed preference to be transparent about the reasons for recusal. In his concurring judgment in the NJAC case in 2015 on whether the then presiding Judge, Justice JS Khehar should recuse or not, Justice Joseph held that a recusing judge ought to give reasons for doing so.

Thus, in Dalip Singh v. PC Kapoor, heard by him and Justice R Banumathi on September 11, Justice Kurian Joseph mentioned in his order:

“Post the matter before a Bench of which one of us (Kurian Joseph, J, who has dealt with the matter in the High Court) is not a member. In view of the fact that this is a long pending matter, post the matter in the next week after obtaining directions from Hon’ble the Chief Justice of India.” 

The point to note here is that not all judges declare that they had dealt with a matter in the high court, and therefore, had reasons to recuse from hearing it. Justice Joseph thus proved himself to be an exception to this rule.

However, he left the second case from which he recused to the inference of the readers. This was K Karim v. State of Kerala, which he recused from hearing on May 1, without stating any reason. This was an SLP arising out of the judgment of Kerala High Court.

The fact that some judges recused much more frequently than others also raises an interesting question: Are they setting the bar for impartiality too high by choosing to recuse even for reasons which would be considered only very remotely relevant?

However, in light of the recent controversy over the refusal of CJI Misra and Justice Khanwilkar to recuse from hearing the medical college bribery case, one might think again.