Why forced recusals of judges harm the independence of the judiciary

If judges step aside on apprehensions of a possible backlash on account of their verdicts, it may start a disturbing trend of forced and unconscionable recusals, which is detrimental to a democracy

Recently, two judges of the Supreme Court recused themselves from a major case fearing invectives and trolling on social media. While there can be no debate that the decision of recusal inexorably lies with the judge hearing the matter, some concerns remain.

That there is a powerful lobby that wishes to influence — or even control — the judiciary is no longer a secret. (Shutterstock)

Recusal originally adverted to the people who refused to attend services of the Church of England. In legal parlance, it is understood as an act of abstention which restrains presiding court officials or an administrative officer from participating in legal proceedings on account of conflict of interest.

The underlying philosophy behind recusal is the Latin maxim "nemo judex in re sua" (no man shall be a judge in his own cause). The oath of office taken by a judge under Article 219 of the Constitution enjoins the judge to duly and faithfully and to the best of their knowledge and judgment, perform the duties of the office without fear or favour, affection or ill will while upholding the Constitution and the laws.

The apex court, in Supreme Court Advocates-on-Record Assn (Recusal Matter) v. Union of India (Recusal Matter), upon an analysis of judicial precedents, culled out the following principles and standards relating to recusal: “If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case. In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of ‘real danger’ or ‘reasonable apprehension’ of bias. The Pinochet case added a new category i.e that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.”

These principles were referred to and relied upon by a five-judge bench of the Supreme Court in Indore Development Authority (Recusal Matter-5 J.) v. Manohar Lal, 2020 where the court reiterated that the decision for recusal cannot be influenced by outside forces and that “Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse.”

The dispute in issue relating to the water sharing of the Krishna river flowing through the states of Maharashtra, Karnataka, Andhra Pradesh and Telangana has been a hot potato for the judges who heard this matter in the past. Now, two learned judges who have recused suo motu happen to hail from the states which are in dispute. The reports suggest that the judges did not wish to be a target of invectives. Legally, the judges are empowered to take a call on their recusal and nobody can dictate this choice, but such a recusal sets a dangerous precedent.

In this new age of fingertip access to social media, the judges are habitually trolled for deciding one way or the other. Even before a matter comes up in court, aspersions are cast and motives are imputed to influence the decision making of the judges. The Supreme Court, in the case of Kamini Jaiswal v. Union of India & Anr., 2018, recommended resorting to its contempt jurisdiction to deal with and punish such persons in accordance with the law. However, in reality, judges seldom take recourse to contempt jurisdiction principally to avoid controversy.

India's judge-to-litigant ratio is dismal, and if each judge becomes disqualified from adjudicating disputes of their home state, and if every decision of a judge is scanned through the lens of their culture, religion or origin, we might never have any decisions in matters relating to a significant section of society.

The judges may be ready to overcome these conflicts and do overcome them, but the public perception of their image forbids them to do so. To recall the words of Justice Frankfurter, in Capital Transit Company & Washington Transit Radio, Inc. V. Franklin S. Pollak & Guy Martin, “There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted.”

In India, the test of “mere likelihood of bias” has given way to the allegation of bias being backed by strong cogent logic and evidence of its likelihood to ward off-forum hunting/bench preference or brow-beating of court. Moreover, judges have come forward to repulse “affronts, jibes and carefully and consciously planned snubs” aimed at them. However, lately, judges in important cases having wide ramifications have chosen to take the "convenient and soft" path of recusal.

The point of concern is that if the senior judges of the apex court step aside on apprehensions of a possible backlash on account of their verdicts, then it may start a disturbing trend of forced and unconscionable recusals and augment the mounting pendency, and what is more, may give impetus to such motivated, disgruntled and subversive forces.

Justice cannot be abandoned at the mercy of “calculated psychological offensives and mind games” adopted to seek recusal of judges. However, at times, the vilification campaigns orchestrated on social media can cause a lot of distress and dismay to the Judges and their kin and kith.

Judges are entrusted with a sacrosanct function of decision-making and are enjoined to perform their duties without fear or favour, affection or ill will, but at the same time, ought to be provided with a conducive environment for doing so. Judges must be safeguarded from this intimidation and brow-beating.

That there is a powerful lobby that wishes to influence — or even control — the judiciary is no longer a secret. And they profess to act in the name of "accountability".

Vicious campaigns launched against the judiciary after the Supreme Court upheld the conviction and sentence of Afzal Guru comes to my mind. Certain sections of the media also fell prey to this game. The same can be said, to some extent, about the judgment in the Ayodhya matter. Former Chief Justice Ranjan Gogoi has made detailed reference to this in his recently released autobiography, Justice for the Judge.

But, then, this trend needs to be arrested in the interest of the judicial system and democracy. Things have gone too far. Freedom of speech cannot — and should not — be permitted to damage the freedom of the judiciary.

Abhishek Gupta is an advocate based out of New Delhi, appearing in various courts, including the Supreme Court 

The views expressed are personal