Column: To recuse or not to recuse?October 29 2019
Arvind P Datar and Rahul Unnikrishnan
A five-judge bench has recently given an elaborate decision on recusal. As explained later, the reasons given by the Supreme Court justifying non-recusal require reconsideration. There are numerous judgments on recusal and almost all of them are based on the peculiar facts of a particular case. Before going into the present controversy, a brief introduction of the law of recusal is necessary.
The term “recusal”, meaning withdrawal, has its roots in the English Roman Catholic concept of “recusant”, a term which was used to label people who refused to attend services of the Church of England. The advent of constitutionalism and principles of rule of law necessitated development of law of recusal of judges as well. This is because, as Sir Stephen Sedley, a former Judge of the Court of Appeal of England and Wales, puts it-
“independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them”.
The law relating to judicial recusal is based on the fundamental proposition that a court should be fair and impartial: public confidence in the institution is supreme. In Justice Hammond’s seminal book “Judicial Recusal”, the law of recusal is classified into two parts: automatic disqualification and bias.
Automatic disqualification includes disqualification for pecuniary interest, and connection with the cause of a party to the litigation. An example for disqualification for pecuniary interest is the case of Dimes v. Proprietors of Grand Junction Canal (1852) 10 ER 301, wherein Lord Cottenham owned shares of the Grand Junction Canal Company in whose favour he ruled. To deal with cases of insignificant pecuniary interests, an exemption to this rule developed subsequently, which came to be known as de minimis rule.
The second category under automatic disqualification is dealt with, in detail, in the infamous case of R v. Bow Street Metropolitan Stipendiary Magistrate & Ors, ex p Pinochet Ugarte (No. 2)  1 AC 119 (HL). Here, the issue was that Amnesty International was an intervener in the extradition proceedings against the former Chilean dictator Augusto Pinochet, and the parties were not aware that Lord Hoffmann was both a director and chairman of Amnesty International Charity Limited, a body which was closely linked with Amnesty International.
Significantly, Lord Hoffmann received no fees for being a director and it was expressly agreed that there was no actual bias on the part of Lord Hoffmann. Holding that bias need not only be pecuniary or proprietary, the House of Lords set aside its earlier order on the mere link between Lord Hoffmann and a subsidiary charity institution of Amnesty International. The public’s confidence in the integrity of the administration of justice would be shaken if the earlier judgement was allowed to stand. It is submitted that there are various observations in this judgment that would apply to a case where a judge has expressed his views in an earlier case.
The law relating to bias developed through a myriad of single instance, fact-specific cases. In AWG Group Ltd v. Morrison  1 WLR 1163, the Court of Appeal summarized the principle as follows:
“The test for apparent bias now settled by a line of recent decisions of this court and of the House of Lords is that, having ascertained all the circumstances bearing on the suggestion that the judges was (or would be) biased, the court must ask ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased”. (emphasis added)
Impartiality and Independence
Impartiality and independence of judiciary have been recognized by various constitutions and international covenants like ECHR and ICCPR. Unlike the United States of America and Australia, we do not have any statutory provision or a protocol that deals with matters related to judicial recusal.
The matters related to Bhima Koregaon and the Land Acquisition Act saw controversies related to the issue of recusal of judges. If applications for recusal are not dealt with properly, the public will lose confidence in the judiciary.
To quote Justice Michael Kirby, a former judge of the Australian High Court-
“the judges in question might feel (or even might actually be) impartial in their own minds. However, they would lack an imperative requirement, essential to the authority and acceptability of judgments, orders and decisions.”: the imperative requirement being a “manifestly independent decision making” process.
The Pune Municipal Corporation v. Indore Development Authority controversy
The Supreme Court had an occasion to consider the scope of certain provisions of the Land Acquisition Act, 1894 in Pune Municipal Corporation v. Harakchand Solanki (2014) 3 SCC 183. This judgment was rendered by a three-judge bench consisting of Lodha, Lokur and Joseph JJ.
The scope of similar provisions later came up for hearing before another bench of three judges in Indore Development Authority v. Shailendra (2018) 3 SCC 412. This Bench was clearly of the view that the earlier judgment was not correct. However, it was expressly argued before the Bench that they should follow the earlier decision in Pune Municipal Corporation and, if that view was found to be incorrect, the proper remedy was to refer it to a larger Bench. By a majority of 2:1, it was held that the decision of the Pune Municipal Corporation was per incuriam.
The majority, comprising of Mishra and Goel JJ, elaborately discussed the meaning of the term per incuriam from para 206 to para 215, and was clearly of the view that the Pune Municipal Corporation decision was incorrect. It observed that the earlier decision had been rendered on a question which was not germane to the case and was not a binding precedent and that it was an obiter dicta and had to be ignored.
In para 216 of the later decision, the majority made it clear that it had given “deep thinking” as to whether it should be referred to a larger bench, but went on to hold that this was unnecessary because they were of the view that the Pune Municipal Corporation case was per incuriam. It then went on to give no less than 11 reasons in para 216 to decide why Pune Municipal Corporation was wrong. The majority did not stop there: it went on further to hold that all other decisions which had followed the view taken in Pune Municipal Corporation were per incuriam. Not only that, it further went on to hold that any decision in conflict with the decision in Indore Development Authority (where Mishra and Goel JJ were in majority) stood overruled.
It is also significant that Shantanagoudar J expressly dissented and gave elaborate reasons as to why the earlier decisions were not per incuriam [see paras 262 to 270 of (2018) 3 SCC 412)].
This controversy was further exacerbated by another three judge bench, staying the decision in Indore Development Authority, and the dispute was eventually referred to a larger bench which rightly did not include Mishra J in the first instance. The Chief Justice of India, as the Master of the Roster, ought not to have constituted a bench presided over by Mishra J when his views where known and his criticism of another coordinate bench’s decision being per incuriam was the subject matter of extensive debate and comment.
The only option then left was to request Mishra J to recuse himself but this was rejected in an elaborate decision passed last week. It is submitted that the decision of the five-judge bench is incorrect. It is no answer to say that a judge is always capable of changing his mind. If one reads the detailed reasoning given in the Indore Development Authority, it is clear that Mishra J has expressly come to the conclusion that Pune Municipal Corporation was wrong for several reasons. Having expressed his opinion in rather strong terms, it is impossible for a litigant to believe that the judge’s views are likely to be changed on the basis of persuasive advocacy. There is clearly a strong conflict of views between what was said in Pune Municipal Corporation and in Indore Development Authority; these views are completely opposite to each other and ought to have been placed before a completely new bench that could take note of both the views and come to a conclusion as to which of them is correct. Theoretically, a judge can always be persuaded to change his views, but the law of recusal is not dependent on what is theoretically possible but on what will enhance the confidence of the litigants in the justice delivery system.
It is an oft-quoted maxim that justice must not only be done, but must be seen to be done. It is equally imperative that a judge must not only be impartial and unbiased, but must be seen to be impartial and unbiased. If a judge has expressed strong views on a particular legal provision, then, it is not in the interest of justice that he presides over a bench which is to examine whether his view was correct or whether the views which he declared to be incorrect are correct. There are decisions that support the plea of recusal and there are other judgments which give reasons why a judge ought not to recuse himself. The non-recusal will typically happen when a judge is improperly requested to recuse himself as a strategy of forum shopping or bench hunting. But these judgments will not apply to a case where a judge has expressly given his opinion on a particular legal issue and expressly declared the opposite view or the other view to be incorrect. Once a judge has found that the other binding view to be per incuriam i.e., a view taken out of carelessness and ignoring earlier decisions, it will be completely improper for the same judge to sit and decide the same case in a larger bench of five judges.
In the US, even an extra-judicial comment by a judge has been held to be a ground for recusal. The recitation of the Pledge of Allegiance in public schools was challenged by a parent on the ground that the expression “under God” violated the First Amendment’s Establishment Clause. The Federal trial court and, in appeal, the US Court of Appeal for the Ninth Circuit held that such mandatory recitation was unconstitutional. In a public meeting, Justice Antonin Scalia of the US Supreme Court made a speech expressing his views on the Establishment Clause and also criticized the view of the Ninth Circuit decision. In the appeal to the Supreme Court against the Ninth Circuit decision, there was an application for the recusal of Justice Scalia on the ground that he had already made an analysis of the Establishment Clause and reached his conclusion. The US Supreme Court granted certiorari to hear the appeal, but Justice Scalia rightly recused himself from the case. [See Elk Grove Unified School District v. Newdow, (2004) 124 S Ct. 2301]
In the famous US v. Microsoft Corporation (2001) 253 F 3d 34, an appellate court set aside the order of the trial judge who had given press interviews expressing his views on the merits of the case; the trial court order was set aside and the matter was remanded for hearing by a different judge even though the trial judge (Judge Jackson) continued to maintain that there was no bias in his mind.
Reference can also be made to a decision of the High Court of Australia (equivalent to the Indian Supreme Court) in Kartinyeri v. Commonwealth (1998) 152 ALR 540. The legal issue was whether certain provisions of a statute were violative of the Australian constitution. Justice Callinan was a member of the High Court bench, and a plea was made that he was disqualified because, as a member of the Bar he had earlier given a joint opinion that the Act, then at the stage of a Bill, was valid. Justice Callinan, in a reasoned order, gave reasons as to why he was not biased. A review petition was filed once again requesting that Justice Callinan should not be on the bench. The Chief Justice of Australia directed that the review petition would be heard by a bench without Justice Callinan. There was a happy turn of events because Justice Callinan decided to withdraw from the main case and a detailed order in the review petition was not necessary. His conduct was hailed as a wise move. (See Hammond, page 113)
In Davidson v. Scottish Ministers (No.2)  UKHL 34, the House of Lords ruled that if a judge had taken part in the drafting or promotion of a legislation in the Parliament, there was a risk of “apparent bias” because a fair minded and informed observer would conclude that there was a real possibility that the judge would subconsciously avoid reaching a contrary conclusion. As Hammond points out, a judge should not participate in a case in an area where he or she helped to create the law. The same principle would apply if a judge has given an elaborate opinion on the merits of certain legal provisions and he is later asked to preside over the Bench which would go into the correctness of his own decision.
Hammond also mentions the need to avoid “confirmation bias” which “inclines us to look for confirming evidence of an initial hypothesis, rather than falsifying evidence that would disprove it”. He quotes the great judge Learned Hand, who, in a lecture, said:
“You must have impartiality. What do I mean by impartiality? I mean you mustn’t introduce yourself, your own preconceived notions about what is right. You must try, as far as you can, it is impossible for human beings to do so absolutely, but just so far as you can, not to interject your own personal interests, even your own preconceived assumptions and risks.”
Hammond also points out that it is not merely impartiality that is important but also objectivity. If a litigant has reasonable grounds to believe that a particular judge has formed strong views on a subject, he is highly likely to doubt the objectivity of that judge. Finally, it is extremely important to note that it is not the faith of the judge in his own independence or impartiality that is relevant. We cannot forget that it is the litigant’s faith in the judicial system that is important. If the request for recusal is not a ruse for forum shopping but is based on valid or plausible reasons, recusal should be the norm. Perhaps, the best route to follow when answering the question: to recuse or not to recuse?- is to follow the words of Justice Venkatachaliah in Ranjit Thakur v, Union of India (1987) 4 SCC 611:
“The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, “Am I biased?”; but to look at the mind of the party before him.”
The authors are practicing advocates.
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